BURMA PRESS
SUMMARY
From the Rangoon "The New Light of Myanmar"
Compiled for the Burma Studies Group by Hugh C. MacDougall
Published by the Center for East Asian and Pacific Studies, University of
Illinois
Volume IX, No. 12, December 1995
NATIONAL CONVENTION
Plenary Session--Legislature
Plenary Session--Executive
Plenary Session--Judiciary
86 NLD Delegates Ousted
Rallies for Convention
NATIONAL
CONVENTION
Plenary
Session--Legislature
Nov. 29 [Continued report of papers presented
on the second day of the Plenary Session]: Proposal paper on Legislature from
the State Service Personnel delegates group [full text of "salient
points" as published in NLM]:
State service personnel
Lt-Col. Thein Tun of State service personnel
delegate group submitted a proposal paper compiled by the group on facts which
should be included in detailed principles to serve as bases in the chapter the
Legislature.
He said that included in the 104 fundamental
principles already laid down are six principles concerning the Tatmadaw of
which the three very important responsibilities are:
(1) the Tatmadaw has the right to administer
for participation of the entire people in State security and defence;
(2) the Tatmadaw is mainly responsible for
safeguarding non-disintegration of the
(3) the Tatmadaw is mainly responsible for
safeguarding the State Constitution.
He commented that for the Tatmadaw to be able
to dutifully discharge tasks assigned by the Constitution, Tatmadaw members
need to participate in the national political leadership role. National
politics involves:
(1) providing deterrence and defence against
all threats and dangers which may befall the entire nation and the entire
people;
(2) and if and when actual dangers befall
they will be confronted, overcome and removed;
(3) projects and programmes which will be of
benefit to the entire people will be laid down and implemented;
(4) in particular, efforts will be made to
achieve preconditions which can ensure the safety and perpetuity of national
(5) cohesive solidarity and unity of national
races will be established and preserved.
The points were pointed out by the Chairman
of the National Convention Convening Commission as national political tasks in
his address on
[National political tasks]
In view of the national political tasks, it
will be found that they are affairs of the entire nation and all
The science of compiling military appraisal
projects, or appreciation of dangers that might befall the nation, administrative
experience gained when faced with dangers that befell the nation and military,
organizational and administrative experience by which security of the nationals
was managed are qualities of the Tatmadaw members who have underwent numerous
training courses and military operations.
[Selection of Tatmadaw representatives]
Hence, participation of Tatmadaw members in
the national political leadership role has come about as a requirement which
should be fulfilled by means of the system of nominating by the Defence
Services Commander-in-Chief who is capable of assessing the qualities of and
selecting Tatmadaw members, rather than by means of election, or in other
words, there is no other means except nomination of persons of the Tatmadaw who
should be assigned by the Defence Services Commander-in-Chief who is the head,
and also like a parent, of the Tatmadaw.
[Defence and Security Committee]
He proposed that the Defence and Security
Committee be formed with the Tatmadaw members after prescribing its term when
there comes about a cause to submit matters concerning the Tatmadaw in addition
to defence and security matters, giving a reason that it is needed to conform
with six principles, concerning the Tatmadaw, out of the 104 fundamental
principles already laid down to serve as bases.
The directly related fundamental principles,
out of the six principles, are:
(1) the Tatmadaw has the right to administer
the participation of the entire people in State security and defence;
(2) the Tatmadaw has the right to independently
administer all affairs concerning the forces.
According to the fundamental principles, it
is found that defence and security and Tatmadaw matters have been completely
assigned to the Tatmadaw, he said.
[Military courses]
Concerning the matter, he said the Tatmadaw
members of the Army, Navy and Air have to attend courses for skills in handling
weapons such as the platoon weaponry course, the sharp shooter course for other
ranks/officers, 75-mm launcher/medium-machine course [sic], artillery platoon
commanders course and artillery battalion commanders course, etc., in addition
to the 12 courses he cited -- the course for recruits, the course for new
corporals, the course for lance corporals, the course for sergeants, the course
for warrant officers, the under-officers course, the Officers Training Course,
the course for platoon commanders, the course for company commanders, the
course for battalion commanders, the Command and General Staff College course
and the National Defence College course.
In addition to these courses, they have to
attend other courses which contribute to enhancing administrative and
organizational power, he said, adding all the periods of courses total 5 to 10
years. He remarked that thanks to training at the courses, they are already
skilled in selecting and deciding modes of operation as how to manage defence
and security matters, how to manage in times of emergency, how to manage in
crucial times and how to manage in times of fighting enemy. He proposed that
necessary formation in the security and defence matters, prerequisite for
perpetuation of sovereignty, be made with Tatmadaw member Hluttaw
representatives who have been properly trained. (NLM 12/1)
Nov. 30: The Plenary Session of the National
Convention continued into its third day, with 540 out of 591 delegates present.
[Note: because of the withdrawal of the National League for Democracy, the
total number of delegates has been reduced -- HCMacD.] The presentation by the
State service personnel delegates group was concluded. It was followed by
proposal papers from the Other Invited Persons group, and from five political
parties [full texts]:
U Soe Win, State service personnel delegate
of the Ministry of Livestock Breeding and Fisheries submitted the remaining
part of the proposal paper.
[Census opposed]
He said that if census is taken only after
the National Convention with the formation of a commission, it will take long
and national unity may be harmed due to the instigation of elements with ill
attitude from within and without the nation and moreover, unforeseeable ill
effects may occur. He cited and extract from the commission report submitted
after making enquiries over the right to regional autonomy in 1952.
It was stated to the effect that in history,
Myanmar nationals had suffered loss of the nation and independence due to
territorial disputes and racial conflicts; the entire nation had fallen under
the aliens without any major differences and only due to pride and prejudice
held by one racial group over another; the nationals had lived humbly in a
slave nation under aliens without independently enjoying human rights in such
affairs as economic and educational affairs; independence was now regained as
unity was shown by the national races keeping differing opinions aside;
intimidations growled out from all sides by the enemy who would swallow us
could be heard as signs of disintegration of national unity could be seen; it
was certain that the race and the nation would be lost again if small racial
groups which has smaller manpower and economic and educational strength by
world standards, behaved as strangers, without showing trust, reliance, respect
and love in dealing with one another like own brothers and sisters born of the
same parents; and newly regained independence and the nation would not be lost
when all the nationals were united and strove all-out in accordance with
geo-politics and under international situations.
So, he said, it is to proceed with vigilance
over actions of internal and external elements everytime unity is weak, adding
today is a time when elements who do not bear to see national unity are
instigating the people employing all means. He said that in the international
scene, brazen interference of big nations in the internal affairs of nations
with small 'national power' by political, economic and military means on
various pretexts can be seen. He proposed that population ratios be reckoned
based on facts and data presented by the National Convention Convening Work
Committee Chairman and the fundamental principles already laid down, instead of
going about by formation of a commission the process of which will take long.
[Qualifications of legislators]
He suggested that qualifications of the
representatives should be prescribed in forming legislative Hluttaws and said
the member must have completed 25 years of age, sufficient for experience and
general knowledge, be a Hluttaw representative born of parents both of whom are
Myanmar nationals and have resided in the nation for at least 10 consecutive
years so as to be a person who has not lost sight of events in the nation. He
said prescribing 25 years for the age of a Hluttaw representative is suitable
as a person in Myanmar can be a graduate at 22 or 23 and even if the person is
not a graduate, he or she at that age can be assumed to have gained fair,
proper experience and knowledge and in addition, to have reasoning power over
the present, the past and the future. If he assumes national duties at this
age, he will have become a well-trained, experience person at about 50 when he
assumes the highest duty. In discussing another point, he said the fact that
the person must be born of parents both of whom are nationals is based on the
belief 'a person will love the race only if he or she is a true descent.' [sic]
He spoke of
Concerning the fact that the representative
must have continuously resided in Myanmar for at least ten years', he said he
or she, as a Hluttaw representative, needs to know the entire course of events
in Myanmar and suggested a term "achaycha nayhtaingthu" (continuous
settler) and the Hluttaw representatives are required to take interest in
Myanmar nationals and to be serving their welfare with all their physical
strength and intellectual power. Only then will the selection of Hluttaw
representatives, who will give decisions on behalf of
He said detailed fundamental principles
concerning structure, rights and responsibilities, terms, prescribing of
qualities and conditions had been suggested based on facts already submitted.
He wished for the united, harmonious participation of persons who strive for
bringing about welfare of the nation and nationals and who love the nation,
persons who will build the nation and persons who will defend the nation and
for emergency of
Other invited delegates
Member of the Myanmar Language Commission Daw
Myint Than, a delegate of other invited persons group submitted the proposal
paper of the group in connection with the structure of the legislature.
She said the delegates group as required by
National Convention delegates had taken into account and followed the speech
given at the Plenary Session of the National Convention on 2 September 1994 by
Chairman of the National Convention Convening Commission Lt-Gen. Myo Nyunt who
spoke of the need to bring about change in social systems, administrative
systems and so forth, right from the base in conformity with significant and
massive changes in the political and economic systems in the State and said
emergence of a new constitution was in real need.
Concerning election of Pyithu Hluttaw
representatives townshipwise she said a representative each should be elected
from townships which have a total population of 300,000 or more. In so doing,
she said, it should be stipulated that the number of representatives should not
exceed 330. If there is the need to elect more representatives to get that
number, it should be prescribed in accord with the election law to elect the
required number of representatives by electing one more representative from
each township which has a total population of more than 300,000; this should be
done so starting from the township which has the largest number of population,
she noted.
She said the following principles should be
laid down as bases:
(a) Pyithu Hluttaw is to be constituted with
the maximum 440 representatives,
(b) no more than 330 representatives elected
on the basis of population are to be included in the Pyithu Hluttaw, and
(c) no more than 110 Tatmadaw servicemen
representatives nominated by the Defence Services Commander-in-Chief are to be
included.
[Amyotha Hluttaw]
In connection with the organization of the
Amyotha Hluttaw, she said it should be constituted with equal number of Hluttaw
representatives elected from the Regions and States, and Tatmadaw servicemen
representatives nominated by the Defence Services Commander-in-Chief should
also be included. She said the number of Amyotha Hluttaw representatives should
be prescribed after taking into account of the number of Pyithu Hluttaw representatives.
If the number of Pyithu Hluttaw representatives is prescribed as 440, the
number of Amyotha Hluttaw representatives should be somewhere around 220, she
said. Tatmadaw servicemen representatives are to be included in proportion to
that number, she added. She also said that participation of national races
should be allowed as much as possible. She said that Amyotha Hluttaw
representatives elected from the self-administered divisions and
self-administered zones should be permitted to participate in the Amyotha
Hluttaw. Then only would they be in a position to present their affairs to the
Amyotha Hluttaw. She then said:
-- the Amyotha Hluttaw shall be constituted
with a maximum Hluttaw representatives as follows:
(a) a total of 168 Amyotha Hluttaw
representatives are to be elected from the Regions and States -- 12
representatives from each Region or State; for Regions or States with
self-administered divisions/zones, one representative shall be elected from
each division/ zone.
(b) a total of 56 Amyotha Hluttaw Tatmadaw
servicemen representatives nominated by the Defence Services Commander-in-Chief
are to be elected from the Regions and States -- four representatives from each
Region or State.
The second part of the group's proposal paper
was submitted by U Haw Law Gyi.
[Region/State Hluttaws]
He said the Region Hluttaws and State
Hluttaws would have to introduce necessary laws exercising powers invested by
the State Constitution. In connection with the election of representatives to
the Region or State Hluttaws, he said it would be appropriate to elect two
representatives from each township of the respective Regions or States. There
would be three categories of representatives to be included in the Region or
State Hluttaws. The first category would be those to be elected by the
prescribed constituencies in the Regions or States, the second Tatmadaw
servicemen Hluttaw representatives nominated by the Defence Services
Commander-in-Chief, and the third national race representatives elected among
the national races which have appropriate size of population residing in the
Region or State concerned.
Tatmadaw servicemen Hluttaw representatives
nominated by the Defence Services Commander-in-Chief should include one-third
of the elected Region/State Hluttaw representatives or one-fourth of the total
Hluttaw representatives.
[A different
In connection with the legislature, he cited
significant points proposed by the leader of the
1. Powers should be distributed and invested
in the Pyidaungsu Hluttaw and Region and State Hluttaws after thorough
consultations and after objectively scrutinizing the benefits of the Regions,
States and self-administered areas of the Union of Myanmar. These shall be
prescribed in the State Constitution.
2. National brethren reside in almost every
township and a township which has a population of up to 100,000 should have the
right to elect one representative each according to the wishes of the
township's residents. One more Pyithu Hluttaw representative is to be elected
from each township the population of which exceeds 100,000 starting from the
township which has the largest number of population.
3. Pyithu Hluttaw shall be constituted with a
maximum 500 Hluttaw representatives --
(a) not more than 400 Pyithu Hluttaw
representatives elected on the basis of population,
(b) not more than 100 Tatmadaw servicemen
Pyithu Hluttaw representatives nominated by the Defence Services
Commander-in-Chief,
(c) the number of representatives elected
according to the wishes of the citizens and that of Tatmadaw representatives
nominated by the Defence Services Commander-in-Chief should be included in the
Pyithu Hluttaw in the ratio of four to one.
4. Amyotha Hluttaw shall be constituted with
(a) a total of 210 Hluttaw representatives --
15 representatives elected equally from each Region or State including one
representative elected from each self-administered division or
self-administered zone in the respective Regions or States,
(b) a total of 42 Tatmadaw servicemen Amyotha
Hluttaw representatives nominated by the Defence Services Commander-in-Chief --
three representatives for each Region or State.
[A different
He also cited significant points in the
proposal of the Kachin State Special Area-1 as follows:
1. The term of the Hluttaw constituted with
equal number of representatives from the Regions and States, it is suggested,
will be appropriate to be called "Lu-myo-su Hluttaw or Taing-yin-tha-mya
Hluttaw". It is agreed to the English term of "House of
Nationalities".
2. It has been suggested that representatives
of peace organizations or Special Areas that have emerged during the time of
the State Law and Order Restoration Council Tatmadaw Government should be
permitted to participate in the legislature of the Regions or States concerned.
[More
A significant point of the proposal presented
by a leader of Northern Shan State Special Area-1 was also cited thus:
Both the number of Tatmadaw representatives
and national races delegates in the two Hluttaws should be increased.
Similar points of the leader of the Northern
Shan State Special Area-2 were:
-- The need for the Tatmadaw to be able to
participate in the national political leadership role of the State is
understood and supported observing the historical development of the Union,
aspirations of the national peoples, the traditions of the Tatmadaw and current
internal and external conditions. Hence, in connection with legislature it will
be more appropriate and justifiable to elect Tatmadaw servicemen
representatives and assign duties to them at different levels of the Hluttaws
to get the stipulated number instead of appointing them.
-- Concerning legislature in the Regions,
States, self-administered divisions and self-administered zones, they should
have the right to introduce laws, based on the Constitution, relevant to the
respective areas respecting traditions and customs and special features of the
national peoples especially those in the self-administered divisions and
self-administered zones.
[Tatmadaw representation]
A significant point in the proposal of U Ko,
a delegate of the other invited delegates group, is:
-- There were 12 provisions from (a) to (l)
barring those from being elected to the Pyithu Hluttaw. They include one
provision (j) any person who is (nai-bet wundan) civil servant. Civil servants
shall have no right to stand for election as Pyithu Hluttaw representatives.
Instead of 'nai-bet-wundan', it will be more comprehensive and meaningful to
use the term 'naing-ngan wundan' (State service personnel), and as such the
term 'naing-ngan wundan' should be used in (j). It would be more appropriate as
the term will cover all the State service personnel. Tatmadaw servicemen who
also are State service personnel will be covered by the term.
Although the Tatmadaw servicemen are State
service personnel, they are to carry out duties in the Pyithu Hluttaw, Amyotha
Hluttaw and Region/State Hluttaws as Tatmadaw servicemen representatives
nominated by the Defence Services Commander-in-Chief; they should not be
covered by the provision barring State service personnel from being elected as
Pyithu Hluttaw representatives. Tatmadaw servicemen representatives are to
serve at the respective Hluttaws as Tatmadaw servicemen and they should have
the right to carry out duties of the Tatmadaw as necessary. Since Tatmadaw
servicemen Hluttaw representatives should not be covered by the term State
service personnel, exception should be included.
[Conclusion]
In conclusion, he said the principles just
submitted are indispensable for the legislature of an enduring Constitution. He
said the group obtained the principles after compiling 20 papers and consulting
10 times. These basic principles would contribute to ensuring the rule of law
and order and peace and tranquillity in the future State, he said.
Union Pa-O National Organization
U Khun Sein Win of Union Pa-O National
Organization said the Hluttaw elected on the basis of population should be
called Pyithu Hluttaw, the Hluttaw elected with equal numbers from regions and
states should be called Amyotha Hluttaw; the Pyithu Hluttaw and the Amyotha
Hluttaw combined should be called Pyidaungsu Hluttaw;
Pyithu Hluttaw should at least be formed with
330 persons elected on the basis of township and population and 110 Tatmadaw
members nominated by the Commander-in-Chief of the Defence Services; the total
440 is in harmony with the population of the country;
Amyotha Hluttaw should be formed with half
the number of members of Pyithu Hluttaw or 224 at most; it should include 168
-- 12 from each of the 14 regions and states, which should include one from
each self-administered division or zone -- and 56 nominated by the
Commander-in-Chief of the Defence Services, that is four from each of the 14
regions and states;
Each Region or State Hluttaw should have two
members from each township; among members of each Region or State Hluttaw, one
fourth should be Tatmadaw members nominated by the Commander-in-Chief of the
Defence Services, and there should also be representatives of national races
with appropriate sizes of population;
So a basic principle should be laid down that
each Region of State Hluttaw should be formed with two persons elected from
each township, one elected from each national race that has a population that
is 0.1 per cent or more of the total population, and Tatmadaw members nominated
by the Commander-in-Chief of the Defence Services.
Shan State Kokang Democratic Party
U Khaung Daing of Shan State Kokang
Democratic Party said that due to State leaders keeping constant watch of the
internal and external situations and acting accordingly, and also due to genuine
democracy loving people participating actively, the Union of Myanmar changed
over from one-party rule to multi-party democracy without disintegration,
scoring a first in the world; no other socialist country in the world had been
able to do so like that; it is a historic feat all the people of the Union must
feel proud of; it came to such a situation that the nation could not be left
unpraised any more; after the change had been brought about in our country,
many other countries formerly under one-party rule are having one government
after another falling and still having to move on to multi-party democracy; it
was as though our country was in the forefront in the developments in the
world; but, without being contented or conceited with that, we must keep on
striving to catch up with advancement of the world nations;
In the political history of our country, he
said, the nation had regained Independence because of united endeavours of
political forces, student organizations, peasant and worker organizations,
sasana organizations, national races, the entire people and Tatmadaw members
all together, and so the Tatmadaw together with the people must have a right to
participate in the national political leadership role of the future State.
He said the matter was being presented out of
goodwill to have Tatmadaw members participating one way or another; the
abilities of a Tatmadaw member would remain the same whether he stood for
election or not; for qualified Tatmadaw members especially votes would be cast
by their party and the entire Kokang people all the more; just as it would not
do without the participation of Tatmadaw members for emergence of the future
democratic State, endeavours must be made by all the citizenry.
As regards matters concerning functions of
Pyidaungsu Hluttaw chairman and vice-chairman, chairmen and vice-chairmen of
Pyithu Hluttaw and Lumyosu Hluttaw, election of temporary chairmen, chairmen
and vice-chairmen of State Hluttaws, their responsibilities, rights and
privileges, the tenure of State Hluttaws, responsibilities, rights and
privileges of Pyithu Hluttaw, Lumyosu Hluttaw and State Hluttaws and
stipulations of their qualifications, and so forth, the clarifications given by
U Aung Toe, Chairman of the National Convention Convening Work Committee are
congruent with the views and attitudes of their party.
In conclusion he said their proposal paper
might contain points others might or might not concur on, as was natural;
discussions must be held with patience to find answers; what was right would
have to be found; and only what was right would be the achievement of the
Convention.
Mro or Khami National Solidarity Organization
U Maung Pain (a) U Khin Maung Thein of Mro or
Khami National Solidarity Organization discussed organization of the Pyithu
Hluttaw. He said it would be appropriate to organize the Pyithu Hluttaw with a
maximum 440 representatives comprising 330 elected representatives and 110
Tatmadaw servicemen Pyithu Hluttaw representatives considering the total
population of the nation and enabling participation of most of the national
peoples residing in the entire
One hundred and ten Tatmadaw servicemen
representatives should be included in the Pyithu Hluttaw so that the Tatmadaw
can play a national political leadership role in the future State and continue
to safeguard Our Three Main National Causes. Hence, Pyithu Hluttaw should be
constituted with a maximum 440 Pyithu Hluttaw representatives as follows:
(a) no more than 330 representatives elected
on the basis of population;
(b) no more than 110 Tatmadaw servicemen
Hluttaw representatives nominated as such by the Defence Services
Commander-in-Chief.
He appreciated the speech of the Chairman of
the Work Committee who said as many national races as possible should be
permitted to participate in the Amyotha Hluttaw thereby expressing the wish to
serve the interests of the national races most equitably.
He said there should be most fair sharing of
national races in the Amyotha Hluttaw.
[Declining Tatmadaw percentage]
In proposing organization of the Hluttaw
under the legislature, he said Tatmadaw servicemen Hluttaw representatives
nominated as such by the Defence Services Commander-in-Chief would be included
in every Hluttaw. Tatmadaw has fine traditions, he said. It has been striving
to make remarkable progress in the political, economic and social fields up to
this day. He said a fundamental principle has been laid down in connection with
the multi-party democracy that the State practices genuine multi-party
democracy system. Hence, he said, it should be stated in the detailed principle
that the number of Tatmadaw servicemen Hluttaw representatives should be
reduced from one-third of the elected Hluttaw representatives in the first term
of the Hluttaw to one-fifth in the second and one-sixth in the third to be in
accord with the fundamental principle.
He pointed out that in the 1948 Constitution,
the head of the Lumyosu Hluttaw (Chamber of Nationalities) was called Nayaka
(Speaker) and head of the Pyithu Hluttaw (Chamber of Deputies) Okkahta
(Speaker).
So, he said, the heads of the Pyithu Hluttaw
and Region/State Hluttaws should be called Okkahta and Dutiya Okkahta instead
of Thabapati and Dutiya Thabapati.
He then said the Mro or Khami National
Solidarity Organization had noted the clarifications of the National Convention
Convening Work Committee Chairman. It had submitted the proposal on certain
points and concerning the remaining clarifications it had nothing to discuss,
it supported them, he said.
Lahu National Development Party
U Kya Ha She of the Lahu National Development
Party submitted proposals of the party on the chapter the Legislature, to be
included in writing the State Constitution.
The Hluttaw constituted with representatives
elected on the basis of population should be called Pyithu Hluttaw. But the one
constituted with equal number of Hluttaw representatives elected from Regions
and States should be called Lumyosu Hluttaw. Because, national leader Bogyoke
Aung San named the Hluttaw which would protect the rights of all the national
races as Lumyosu Hluttaw (Chamber of Deputies [sic]) in the 1947 Constitution
to have full essence. Similarly, the Hluttaw to be constituted with equal
number of national races representatives from the Regions and States should be
called Lumyosu Hluttaw for the sake of national solidarity.
Neither the State service personnel nor
citizens who are
The Commission Chairman at the Plenary
Session of the National Convention on
The Commission Chairman also said at the
Plenary Session of the National Convention on
In conclusion, he said the Lahu National
Development Party truly wished genuine democratic State. It ardently wished
unity of national races residing in the country and perpetuation of the
Union Kayin League
U Saw Daniel of Union Kayin League said he
would discuss the clarifications of Chairman of the National Convention
Convening Work Committee U Aung Toe on the legislature, executive and judiciary
to be included in the constitution at the Plenary Session of the National
Convention on
Concerning legislature fundamental principles
had been laid down as:
1. The legislative power of the State is
distributed among the Pyidaungsu Hluttaw, Region Hluttaws and State Hluttaws.
Legislative power stipulated by the State Constitution shall be distributed to
self-administered areas.
2. Pyidaungsu Hluttaw consists of two
Hluttaws -- one Hluttaw elected on the basis of population and the other one
with equal number of representatives elected from Regions and States.
3. Seven Regions have one Region Hluttaw and
seven States have one State Hluttaw each.
4. Pyidaungsu Hluttaw, Region Hluttaws and
State Hluttaws include Tatmadaw servicemen Hluttaw representatives nominated as
such by the Defence Services Commander-in-Chief in numbers stipulated by the
State Constitution.
5. For the national races having appropriate
size of population, their national races representatives have the right to
participate in the legislature of the Regions, States or self-administered
zones concerned.
According to these fundamental principles,
1. it is most appropriate to have two
Hluttaws to be called Pyithu Hluttaw and Amyotha Hluttaw,
2. it is also suitable to constitute the
Pyithu Hluttaw with 440 representatives including 110 representatives from the
Tatmadaw, considering that there are 324 townships in the Union of Myanmar with
a population of more than 44 million.
He said Amyotha Hluttaw representatives for
each of the Region and State Hluttaws should be prescribed as 16 and of them,
12 are to be elected and the remaining four are to be Tatmadaw member Hluttaw
representatives nominated by the Defence Services Commander-in-Chief.
He proposed that Amyotha Hluttaw be
constituted with not less than 224 representatives and Amyotha Hluttaw chairman
and vice-chairman are to be elected in accord with the procedures as in the ph
chairman and vice-chairman are to be elected in accord with the procedures as
in the Pyithu Hluttaw.
Election, formation and rights and
responsibilities concerning Pyithu Hluttaw and Amyotha Hluttaw be prescribed by
law, he suggested. He expressed support to prescribing of age for Pyithu
Hluttaw chairmanship and vice-chairmanship as 25 and their tenures as five
years.
He cited reasons of inclusion of Tatmadaw members
in the Hluttaw representatives:
(1) the Tatmadaw contained conditions of
disintegration and collapse in the nation as no one could not do so [sic];
(2) there has not been anyone except Tatmadaw
who ha spearheaded for national unity;
(3) the Tatmadaw is the sole disciplined
force in the nation;
(4) the Tatmadaw is completely consolidated;
and,
(5) the Tatmadaw members have venturous
spirit for the nation and are those who vow every day for sacrificing their
lives for their nation, people and Tatmadaw.
(NLM 12/1)
--------------------------
Dec. 1: The Plenary Session of the National
Convention met for the fourth day, with 532 of 591 delegates present. Proposal
papers on the Legislature were presented from by political parties and
representatives-elect from two parties [full texts]:
Shan State Kokang Democratic Party
U Khin Maung Aye of Shan State Kokang
Democratic Party submitted a proposal paper compiled by the party in connection
with the findings of the Work Committee on the chapter the Legislature.
He said:
-- Pyidaungsu Hluttaw consists of two
Hluttaws -- one Hluttaw elected on the basis of population and the other one
with equal number of representatives elected from Regions and States,
-- Pyidaungsu Hluttaw, Region Hluttaws and
State Hluttaws include Tatmadaw servicemen Hluttaw representatives nominated as
such by the Defence Services Commander-in-Chief in numbers stipulated in the
State Constitution.
-- Pyithu Hluttaw constituted with Hluttaw
representatives elected on the basis of population and Tatmadaw servicemen
Hluttaw representatives nominated as such by the Defence Services
Commander-in-Chief.
-- Amyotha Hluttaw constituted with equal
number of Hluttaw representatives elected from the Regions and States and
Tatmadaw servicemen Hluttaw representatives nominated as such by the Defence
Services Commander-in-Chief.
Concerning Amyotha Hluttaw, it shall be
constituted with a maximum of 224 Hluttaw representatives as follows:
(a) a total of 168 Amyotha Hluttaw
representatives -- 12 representatives each elected from the Regions and States
including one from each self-administered division or self-administered zone in
the Regions or States having such divisions or zones,
(b) a total of 56 Tatmadaw servicemen Hluttaw
representatives nominated as such by the Defence Services Commander-in-Chief.
-- Duties, rights and privileges for election
of the chairman and the vice-chairman of the Amyotha Hluttaw shall be
prescribed by law as in the same procedures for election of the chairman and
the vice-chairman of the Pyithu Hluttaw.
In connection with constitution of the Region
Hluttaws and State Hluttaws, he said:
Through formation and participation in the
"Yayya Htana" (affairs departments) in the Region/State Hluttaws of
the respective Regions or States in which they are resident to have the right
to see to their own affairs, national races residing outside their respective
states too would be able to work for national solidarity more conforming to
democratic practices.
-- They are to be constituted also with
Tatmadaw servicemen Region or State Hluttaw representatives nominated as such
by the Defence Services Commander-in-Chief representing one-third of the total
Hluttaw representatives elected under sub-paragraph (a), (b) and (c).
In conclusion, he said the group had nothing
to discuss restrictions and qualifications for the Pyithu Hluttaw and Amyotha
Hluttaw representatives clarified by the Chairman of the National Convention
Convening Commission.
Wa National Development Party
U Saw Joseph (a) U Joseph Tun, a National
Convention delegate of the Wa National Development Party would, without going
against the fundamental principles already laid down but with a constructive
sense in the spirit of unity and sincerity to serve the long-term interests of
the nation and citizens, frankly discuss the structure of the legislature out
of the legislature, executive and judiciary as clarified by Chairman of the
National Convention Convening Work Committee U Aung Toe at the National
Convention Plenary Session on 2 September 1994.
In connection with the structure of the
legislature, the Work Committee Chairman clarified that,
(1) the legislative power of the State is to
be distributed to the Pyidaungsu Hluttaw, Region Hluttaws and State Hluttaws,
(2) the legislative power stipulated by the
State Constitution is to be distributed to the self-administered areas; it is
suitable to lay down these as detailed fundamental principles as bases.
Concerning organizations of the Pyidaungsu
Hluttaw, a fundamental principle should be laid down to organize it with (1)
one Hluttaw constituted with representatives elected on the basis of
population, (2) another constituted with equal number of representatives
elected from the Regions and States.
It would be in accord with the principle that
the sovereign power resides in the citizens if the Pyidaungsu Hluttaw, Region
Hluttaws and State Hluttaws are constituted with the respective Hluttaw
representatives elected by the nationalities and citizens concerned. It would
also be in conformity with the practicing of genuine multi-party democracy
system and flourishing of worldly values.
At the Plenary Session of the National
Convention on
In his greetings to the National Convention
delegates on 7 January 1993, the Chairman of the Commission referred to the
story of Suvannasama from Jataka Stories and said just like the parents in the
story, the people were desirous of seeing their son coming back to them
carrying a pot of gold, meaning their wish for restoration of their eyesight as
well as their son's life and prosperity. The Commission Chairman asked the
delegates to hold discussions and give suggestions that would fulfil the wishes
of the people. The Commission Chairman was seen to have stressed the emergence
of an enduring new constitution that would last and serve the interests of the
nation and citizens in the long term.
In conclusion, the delegate said the discussions
and proposals of the Wa National Development Party were intended to contribute
towards serving, to some extent, the interests of the nation and citizens in
accord with the instructions of the Commission Chairman.
Shan Nationalities League for Democracy
U Sai Nyunt Lwin, National Convention
delegate of Shan Nationalities League for Democracy, submitted a proposal paper
compiled by the party on the structure of the chapter the Legislature to be
included in writing the Constitution.
He said the proposals were based on the facts
-- perpetuation of the Union of Myanmar, emergence of a Constitution which all
nationals can accept, for all national races to enjoy rights equally, for all
nationals to be equal before the law and objectives of the National Convention.
The 'Legislature', he said, is so important a
chapter as the brain and the heart of the State and also leads the way for the
Union as every law discussed, approved and enacted is to be obeyed by every
national. It is seriously believed that with proper and correct structure,
functioning and separation of power, the sector of Legislature will help the
executive, the judiciary and other sectors of the future Union appear vivid and
definite and gain smooth functioning and progress, he remarked.
He pointed out that at this juncture, correct
path for success of the future journey will be found only after reviewing the
present situation on the basis of experience and taking lessons from the past
events, adding past events and present life conditions cannot be ignored. He
said the Union of Myanmar has not emerged for no cause and regaining of
independence with the strength of unity, out of trust and reliance and love and
unity among national races and after signing of agreements should not be
forgotten, adding the cause of the emergence of the Union and regaining of
independence from aliens is rooted in the signing of the Panglong Agreement.
Without promises and agreements, he said, the
Panglong Agreement would not have emerged and if there were no such agreement,
the Union would not have emerged. He attributed emergence of the Union to the
Panglong Agreement with which national unity has been forged, noting it was not
wrong to say that an essence of signing the agreement was actually realization
of Our Three Main National Causes. Panglong spirit is the spirit for
non-disintegration of the Union, consolidation of national unity and
perpetuation of sovereignty, he said and expressed his belief that lacking or
weakening of Panglong spirit or ignoring of the Panglong Agreement will affect
Our Three Main National Causes.
It will be found that the Panglong Agreement,
the foundation of the Union, was signed with the unity forged with one unit
each from the Myanmar Government, the Shan State government, Kachin representatives
and Chin representatives and the agreement was completely based on the
cooperation on equal status of the mainland and hill regions under agreement,
non-interference in the affairs of the states and having the right of
self-promulgation, he explained.
He commented that the nation will be worth
being called a Union nation and will practically enjoy what is independence
when the national races implement with mutual understanding the facts presented
above. Shan Nationalities League for Democracy, he said, wishes the nation to
be built in a genuine Union system and to lay emphasis more on the essence of
the Union than on its name.
U Sai Soe Nyunt (Shan NLD)
U Sai Soe Nyunt of Shan Nationalities League
for Democracy submitted the remaining part of the proposal paper.
He collectively presented opinions put
forward by the party:
(1) to form the chapter 'the Legislature'
taking the affairs of all the national races and democratic causes for all the
citizens into consideration based on the Panglong spirit;
(2) to lay down principles to serve as bases
only when they stand the test of the fundamental principle 'Sovereignty resides
in the citizens';
(3) to distribute legislative power of the
State among the Pyidaungsu Hluttaw, Region Hluttaws and State Hluttaws,
(4) to vest the Pyidaungsu Hluttaw with
legislative power for common affairs and to vest Region Hluttaws and State
Hluttaws with the remaining legislative power;
(5) to keep legislative power for
self-administered areas at Region Hluttaws and State Hluttaws;
(6) to call the Hluttaw constituted with
equal numbers of representatives from Regions and States by a more meaningful
term "Lumyosu Hluttaw', instead of Amyotha Hluttaw;
(7) to constitute Pyidaungsu Hluttaw with
Hluttaw representatives elected on the basis of population and national races
Hluttaw representatives elected in equal numbers from Regions and States;
(8) to constitute Pyithu Hluttaw with Hluttaw
representatives elected on the basis of population;
(9) to lay down a principle 'Tatmadaw members
nominated by the Defence Services Commander-in-Chief have the right to stand
election in the constituencies of the Pyidaungsu Hluttaw, Region Hluttaws and
State Hluttaws:
-- if elected, the Tatmadaw member has the
right to participate as Hluttaw representative in the respective Hluttaw;
-- if not elected, the Tatmadaw member is
permitted to return to the Tatmadaw to discharge duties in his or her former
rank';
(10) as it has been said that Pyithu Hluttaw
representatives are elected on the basis of population and in consideration of
the future when the population will be increasing, to constitute Pyithu Hluttaw
is to be constituted constituency-wise with
(a) a people's representatives made up of one
Hluttaw representative elected from each township;
(b) representatives made up of one more
Hluttaw representative elected from each township having a population of
300,000 and above;
(11) When there arises cause to study and
submit matters concerning the Tatmadaw in addition to defence and security
matters, Pyithu Hluttaw is to form the Defence and Security Committee with
Pyithu Hluttaw representatives and prescribe its term;
(12) to prescribe the tenure of the Pyithu
Hluttaw as five years, instead of four years;
(13) to enact separate laws for election of
Pyithu Hluttaw temporary chairman (yaryi thabapati), election of session
chairman (thabapati) and vice-chairman (dutiya thabapati) and prescribing their
rights and responsibilities, resignation of session chairman and vice-chairman;
termination from being representative and for having no more right to stand as
representatives; and to term leader and deputy leader of Pyithu Hluttaw
representatives as Pyithu Hluttaw chairman (okkahta) and Pyithu Hluttaw
vice-chairman (dutiya okkahta) respectively instead of session chairman
(thabapati) and vice-chairman (dutiya thabapati);
(14) to term Amyotha Hluttaw as Lumyosu
Hluttaw and it is to be constituted with national races Hluttaw representatives
elected in equal numbers from Regions (States) under the principle of equality
of national races;
(15) if it is to provided that Lumyosu
Hluttaw should include representatives of self-administered areas, the Hluttaw
is to be constituted with one national race Hluttaw representative from each of
the self-administered areas;
(16) when there arises cause to study and
submit matters concerning the Tatmadaw in addition to defence and security
matters, the Hluttaw is to form the Defence and Security Committee with Hluttaw
representatives and prescribe its term, and is to be granted the right to
include suitable persons in the committee;
(17) to enact a separate law for election of
Amyotha Hluttaw alternate chairman and the chairman's performance of duties,
election of session chairman (thabapati) and vice-chairman (dutiya thabapati),
their performance of duty and termination of them from duty; and to term chief
or the representative and deputy chief of Lumyosu Hluttaw representatives as
Nayaka and Dutiya Nayaka respectively, instead of Thabapati and Dutiya
Thabapati.
(18) to stipulate numbers of State and Region
Hluttaw representatives by the respective State or Region;
(19) to enact a separate law for election of
Region or State Hluttaw temporary chairman (yaryi thabapati), election of
session chairman (thabapati) and vice-chairman (dutiya thabapati), performance
their duty [sic], termination of them from duty and prescribing of rights and
responsibilities and prescribing of tenures;
(20) facts crucial for the Constitution
should be provided as principles; they should not be detailed principles to
serve as bases; and the matter is to be carried out with the enactment of law;
(21) concerning election to the Pyidaungsu
Hluttaw (Pyithu Hluttaw and Lumyosu Hluttaw) and to State or Region,
qualifications as to being a person who has completed 21 years of age and being
a national born of parents both of whom are nationals are to be prescribed;
(22) every citizen has the right to vote if
he or she has completed 18 years of age and the right to stand for election if
he or she has completed 21 years of age;
(23) other bans and prohibitions are to be
dealt with by promulgation of a separate law without providing them in the
Constitution to be written.
National Unity Party
Brig-Gen. Than Tin (Retd) of the National
Unity Party submitted the proposal paper of the party on the legislature to be
included in writing the new State Constitution. He said:
The proposal paper would be divided into two
parts and the first part would present general appraisals on the three chapters
namely, the legislature, the executive and the judiciary. In his
clarifications, the Work Committee Chairman said fundamental principles of the
three chapters are related to one another and there were certain principles
that should be discussed when the related chapters were dealt with. Points
would have to be considered together to lay down the fundamental principles.
The Work Committee Chairman noted that the structure, division of powers and
the functions are to be discussed separately in dealing with these chapters to
lay down the fundamental principles for them.
The structure of the legislature would be
discussed in the second part.
[The three branches of government]
The legislative, executive and judicial
powers are three aspects of sovereignty or three branches of government. The
sovereign power would be complete only when the three powers -- legislative,
executive and judiciary -- are all combined. A government would then possess characteristics
to become a strong, firm and effective one.
It should be acknowledged that the three
powers exist in separate entity and inter-related. In this concept, the three
power would have to be analysed and appraised together.
In applying this concept there would crop up
in relation separation of powers of the three powers and division of powers
between the central and local organs.
The main aim of the separation of powers of
the three powers is to prevent a person or a group of persons from exercising
the sovereign power that resides in the people at will. If a person or a group
of persons invested with a particular power has the right to influence other
person or organizations invested with other powers, there will arise misuse of
powers and moves toward the benefit of a single individual. Based on the
experiences inside and outside the country, every care needs to be taken to
deter such instances.
The main aim of separation of powers is to
avoid the extremes of too much central control and uncontrolled local
autocratic conditions and following the middle way. There have been experiences
and lessons from inside and outside the country that disagreements in
political, economic, social and racial matters and grudges could occur when one
of the extremes was practised in the division of powers between the central and
regional authorities.
Hence, much care should be taken with
magnanimity to see that there are no such flaws in the constitution to be
written. In separation of three powers, holding in esteem Our Three Main
National Causes and avoiding the extremes are the correct stand. Division of
powers should be based on the generally accepted principles. Powers should be
divided whether to be exercised independently or jointly by the Pyidaungsu,
Regions, States and self-administered areas. If so, points conforming to the
objectives of the National Convention could be achieved.
In connection with separation of powers and
division of powers, the party would present its views based on the fundamental
principles aimed at building of a genuine democratic nation, ensuring harmony
in political, economic, social, racial and judicial matters and enabling the
people to enjoy democratic rights fully.
The original stand of the party in connection
with emergence of an enduring new constitution was presented.
The constitution to be written should reflect
the aspirations and interests of the people. It should also suit the objective
conditions of the country. Pillars of democracy should be firmly established in
the constitution. The provisions should be those which could be put to
practice. Once promulgated, the constitution would have to be respected
especially by organs of power, service organizations, political parties and the
public. Then only would it last. (NLM 12/2)
According to the main structure, there would
be Pyidaungsu Hluttaw for the legislature of the entire country. Two
legislative bodies of Pyithu Hluttaw and Amyotha Hluttaw would be in the
Pyidaungsu Hluttaw. It is appropriate to have two legislative bodies in accord
with the structure of the Union. This would be a generally accepted principle.
The Republic of the Union of Myanmar will be
constituted with seven Regions and seven States. Accordingly, there would be
Region Hluttaws and State Hluttaws. Regions and States would have one
legislative Hluttaw each. Organization of various legislative Hluttaws as such
is most appropriate in view of the separation of powers and division of powers
between the central and regional organs of power.
In the self-administered divisions and
self-administered zones, legislative power would be stipulated by the
constitution but no separate legislative body would be formed; duties would be
assigned to the bodies constituted for the self-administered areas instead.
The Work Committee Chairman went into detail
concerning the legislative bodies including the structure, election of acting
chairman, chairman and vice-chairman and so on.
The National Unity Party agreed in principle
to the clarifications of the Work Committee Chairman in connection with the
structure of the legislature. However, certain points which should be
reconsidered and additional suggestions would be presented.
[Renaming Amyotha Hluttaw]
Concerning the terms of the two Hluttaws, the
term Pyithu Hluttaw (House of Representatives), the legislative body
constituted with representatives elected on the basis of population and
representing all of the citizens regardless of race, religion or sex is
appropriate in both Myanmar and in English and conforms with the functions.
The English term House of Nationalities makes
it evident the essence of consultations of nationalities in a legislative body,
and English and Myanmar terms concur.
Hence, the Hluttaw where national races
delegates of the Regions, States and self-administered areas meet and hold
consultation should be called "Taingyin-tha Lumyosu Hluttaw" (House
of Nationalities).
[Civilian participation on Defence and
Security Committees]
Regarding formation of defence and security
committees in the Pyithu Hluttaw and Amyotha Hluttaw, it was found to have
proposed to form the committees in the two Hluttaws with Tatmadaw servicemen
representatives only. It is well understood that the matter of national defence
and security is the main duty of the Tatmadaw. It is accepted that the ability
and the strength of the Tatmadaw born of the people depend on the people's
support and cooperation, considering the Tatmadaw's origin and traditions.
According to experiences, the affairs of the
people are that of the Tatmadaw and vice versa. The oneness of the Tatmadaw and
the people is fully acknowledged. Moreover, under the geographical conditions
and political concepts, military matters are concerned with not only the
Tatmadaw but also the people. Furthermore, the entire mass of the people together
with the Tatmadaw are to cooperate when local wars, limited wards, world wars
and wars of aggression break out.
Defence and security covers not only military
matters but also international relations, economic, science, technology and
legal affairs. So, there should be a wide participation of experienced persons
in the respective subjects and experts together with Tatmadaw servicemen
representatives to discuss defence and security matters in the Hluttaws
concerned. Hence, other Hluttaw representatives should be included together
with the Tatmadaw servicemen representatives in the defence and security
committees of the two Hluttaws.
National races covered by the fundamental
principle to be laid down will have the right to elect one representative each and
would be able to manage legislative and administrative affairs in the Regions
or States.
At the same time, efforts should be made to
suppress narrow-minded racialism and prevent the spread of suspicions and
grudges while promoting patience, magnanimity, forgiveness and mutual respect.
Especially, it would be necessary to encourage equality among all the national
races, keep the hegemonic practices free, promote mutual respect and understanding
between the majority and minority and make sure that the majority respect the
rights of all.
In the Regions, States and self-administered
areas, it would not be sufficient for the minority to have just the right to
represent; points enabling them to enjoy democratic rights fully should be
provided specifically in the respective chapters of the constitution. The
government and non-governmental organizations would have to make concerted
efforts to flourish in the entire country worldly values, to have sympathy
towards one another and to flourish four cardinal values. To sum up, all the
people of the country would have to work in unison for the common weal. Then
only would a united and firm Union emerge.
The clarifications of the Work Committee
Chairman on the legislature covered not only the structure of the various
legislative bodies but also the qualifications of the Hluttaw representatives.
The role and responsibilities of the representatives of the Pyithu Hluttaw,
Amyotha Hluttaw and self-administered areas are heavy and extensive.
Representatives who have to discharge duties in the respective legislative
bodies should be able to present their views frankly, boldly and correctly;
they should be able to do so with security. These are important points.
Exemptions, duties and responsibilities and
rights for the representatives in the respective legislative bodies to be
prescribed in law should be laid down in the detailed fundamental principles.
These discussions are concentrated on the
legislature. Discussions on the executive and judiciary would continue later.
Separation of powers and functions of the three powers would then be dealt
with. In so doing, the National Unity Party would continue to work for the
success of the National Convention, achievement of a genuine consensus and
emergence of an enduring constitution.
[Proposal papers of Representatives-elect
delegates group]
Shan State Kokang Democratic Party
U Yaw Aye Hla of Shan State Kokang Democratic
Party said their party would make proposals with sincere goodwill without any
base intent to hurt or favour anyone. Ours might or might not concur with those
of other delegates.
In a country, just as it will not do if there
are no people to support the Tatmadaw, so also it will not do if there is no Tatmadaw
of the people safeguarding the people. The people and the Tatmadaw are mutually
dependent. One cannot do without the other, one depends on the others.
Due to State leaders keeping constant watch
of the internal and external situations and acting accordingly, and also due to
genuine democracy loving people participating actively, the Union of Myanmar
changed over from one-party rule to multi-party democracy without
disintegration, scoring a first in the world; no other socialist country in the
world had been able to do like that; it is a historic fact all the people of
the Union must feel proud of; it came to such a situation that the nation could
not be left unpraised any more; after the change had been brought about in our
country, many other countries formerly under one-party rule are having one
government after another falling and still having to move on to multi-party
democracy; it was as though our country was in the forefront in the
developments of the world; but, without being contented or conceited with that,
we must keep on striving to catch up with advancement of the world nations.
In the political history of our country, he
said, the nation had regained Independence because of united endeavours of
political forces, student organizations, peasant and worker organizations,
sasana organizations, national races, the entire people and Tatmadaw members
all together, and so the Tatmadaw together with the people must have a right to
participate in the national political leadership role of the future State.
[Note: last two paragraphs virtually identical to those in the presentation of
U Khin Maung Aye of the Political Parties delegates group -- HCMacD.]
So their party proposed the following:
(a) For inclusion of Tatmadaw representatives
in the Lumyosu Hluttaw, stand for election along with other political parties
and independent candidates for 42 Hluttaw seats;
(b) For inclusion of Hluttaw members from the
Tatmadaw for one fifth the number of seats in the Pyithu Hluttaw. Tatmadaw
members nominated by the Commander-in-Chief of the Defence Services stand for
election along with other political parties and independent candidates;
(c) For Tatmadaw members to get one fifth of
the total number of seats in each Region or State Hluttaw, Tatmadaw members
nominated by the Commander-in-Chief of the Defence Services stand for election
along with other political parties and independent candidates;
(d) Depending on the results of such standing
for election, Tatmadaw representatives will be able to participate in the national
political leadership role of the future State.
He said the matter was being presented out of
goodwill to have Tatmadaw participating one way or another; the abilities of a
Tatmadaw member would remain the same whether he stood for election or not; standing
for election will in no way diminish the qualifications of that person; for
qualified Tatmadaw members especially votes would be cast by their party and
the entire Kokang people all the more; just as it would not do without the
participation of Tatmadaw members for emergence of the future democratic State,
endeavours must be made by all the citizenry.
In conclusion he said their proposal paper
might contain points others might or might not concur on, as was natural;
discussions must be held with patience to find answers; what was right would
have to be found; and only what was right would be the achievement of the
Convention. [Paragraph identical to that in Political Party delegate's
presentation, above -- HCMacD.]
Mro (or) Khami National Unity Organization
U San Tha Aung of Mro (or) Khami National
Unity Party Organization said it would be appropriate to have 440 members in
Pyithu Hluttaw -- 330 elected persons and 110 Tatmadaw members; the Tatmadaw is
shouldering the national duty upholding Our Three Main National Causes of
non-disintegration of the Union, non-disintegration of national solidarity and
perpetuation of sovereignty; it had stood for the people making self-sacrifices
and it has always safeguarded Our Three Main National Causes with a great
tradition; it should be permitted for 110 Tatmadaw members to participate in
the Pyithu Hluttaw so that the Tatmadaw would be able to participate in the
national political leadership role in the future State and continue to
safeguard Our Three Main National Causes.
So a detailed basic principle should be laid
down to the effect that the Pyithu Hluttaw shall be formed with 440 members at
most as follows:
(a) not more that 330 persons elected to the
Pyithu Hluttaw on the basis of population;
(b) not more than 110 Tatmadaw members
nominated by the Commander-in-Chief of the Defence Services.
[National race representation in Amyotha
Hluttaw]
As there will be only 220 members in the
Amyotha Hluttaw and as there will be only 12 representing each Region or State,
it is not certain that the 12 will include all national races; so a firm
principle should be laid down to ensure the broadest possible participation of
national races in the Amyotha Hluttaw; so a basic principle should be laid down
that in each Region or State each national race that has a population that is
one percent of the total population of the Region or State should be permitted
to participate in the Amyotha Hluttaw; only then will it be possible to have a
constitution and laws that will serve the interests of all national races; it
will also be in accord with the democratic discipline and tantamount to evenly
implementing the fundamental rights of all national races.
If it is to be determined on the basis of 0.1
per cent of the population of the whole country, it will cause unevenness in
opportunity for each national race with a population of less than 44,000; and
it will not be in accord with the essential democratic characteristic
principles of justice, liberty and equality; so, with aims at enabling the
broadest participation of national races in the Amyotha Hluttaw, in accord with
what is contained in the article by Aung Min and in accord with the democratic
practice, it is proposed a detailed basic principle be laid down that each
national race with a population that is one per cent of the total population of
the Region or State shall have right of participation in Amyotha Hluttaw.
It is also proposed it should be considered,
in the detailed basic principle, for creating new township for each national
race that does not yet have own township, among the 35 national races with
populations over 10,000, and for prescribing self-administered zones.
Except for these points, he said, their
organization endorsed all other points in the clarification given by U Aung
Toe, Chairman of the National Convention Convening Work Committee, as regards
the subject of legislature. (NLM 12/3)
The Convention will reconvene on Dec. 4.
(NLM 12/2)
Dec. 4: The Plenary Session continued, with
530 of 590 delegates present. Delegate U Ko Lay of the nationalities delegates
group died, reducing the total from 591. Proposal papers on the Legislature
were presented by party and independent representatives-elect [full texts]:
NUP (Hluttaw representatives-elect)
U Thein Tun, Hluttaw representative-elect of
Ingapu Constituency 2, Ayeyarwady Division, National Convention delegate of
National Unity Party, submitted a proposal paper compiled by members of the NUP
included in the Hluttaw representatives-elect delegates group on the chapter
the Legislature.
He spoke of elaborate explanation of the
Chairman of the National Convention Convening Work Committee on 2 September
-- on designation of the self-administered
division or self-administered zone included in the chapter the State Structure;
-- the structure of the chapter 'the
Legislature';
-- the structure of the chapter 'the
Executive';
-- the structure of the chapter 'the
Judiciary'.
He said the delegates had noted them down and
made studies and based on them presented their NUP's opinion and stand on the
self-administered areas to the Panel of Chairmen on 21-9-94 and read and
explained them at a Hluttaw representatives-elect delegates group meeting on
3-10-94.
[Separation of powers]
He first submitted the party's general stand.
He said that when the 104 fundamental principles were laid down, the following
points regarding the separation of powers are included:
(1) the three branches of State power,
namely, legislative power, executive power and judicial power are separated as
much as possible and exert reciprocal control, check and balance;
(2) the three branches of State power so
separated are distributed among Pyidaungsu (Union), regions, states and
self-administered areas.
He said the legislative power, the executive
power and the judicial power are the 'three aspects of sovereignty', or in
other words, they can be called the 'three branches of government', adding only
when the three powers are combined, will sovereignty appear vivid and will the
government possess characteristics of strength and dynamism.
If this general stand on the three powers is
understood, approved of and accepted by all unanimously, a belief that as each
of them bears its own characteristics, they have reciprocal dependence and
relation must also be accepted, he noted and said it will be found that in
analyzing the three powers on the basis of this stand, it is necessary to view
separately or collectively.
By practising this stand by laying down a
fundamental principles in writing the new Constitution, 'separation of powers'
and 'division of powers' between the central and regional authorities will
appear relatively, he explained.
The main aim of separating exercising the
three powers, he said, is to control a situation in which one person or one
group may abuse sovereignty of the people to one's or their satisfaction or may
misuse them. If one person or one group exercising one power has an opportunity
to influence on the other person or group exercising another power, they will
come onto the path of misuse of power, he said and noted care must be taken to
prevent occurrence of such cases.
In view of the clarifications of the Chairman
of the Work Committee on 2 September, State machinery will be emerging vividly with
the Constitution and the organizations operating in the machinery are
'constitutional institutions'.
He went on to submit general belief in
analyzing the constitutional institutions.
He said it will be necessary to assess
constitutional institutions whether their forms are compatible with their
functions and to be able to assess so, it is necessary to clearly understand
their forms and functions.
[Regional parliamentary system]
There should be relations in the nature of
formation or functions of one institution with another. It is learnt that there
will be the Region Prime Minister or State Prime Minister at the region or
state level. Due to the term 'prime minister', it may be doubtful whether there
will be parliamentary democracy system at the region or state level, not like
the central, in our country where the fundamental principle to adopt
presidential administrative system has been laid down.
The fact makes it necessary to implement in
conformity with the 104 fundamental principles, he remarked.
He commented that the institutions, he said,
must be so efficient as to shape democratic social system which people desire
and to stand firmly for the welfare of the people, and they must also
contribute to flourishing of a genuine parliamentary democracy system.
Emergence of a enduring State Constitution is
an aim desired by the National Convention delegates, the people and the high
ranking officials of the State and for emergence of such a Constitution,
constitutional institutions need to be firm in structure which can be achieved
by the systematic formation of them in accordance with objective requirements,
he said.
Continuing, he discussed formation of the
chapter the Legislature. In studying the clarifications regarding formation of
the chapter Legislature, altogether 39 points are found suitable to be adopted
as fundamental principles.
He spoke of five points regarding legislature
in laying down 104 points to be enshrined in the Constitution as fundamental
principles and said when a comparison is made between the five points and the
Work Committee Chairman's clarifications, the clarifications are found to have
extensively and relatively dealt with detailed principles to serve as bases. In
view of these clarifications, it can be said that the 'main skeleton',
formation of the Pyithu Hluttaws at different levels, has appeared vividly.
According to the main skeleton, there will be Pyidaungsu Hluttaw in a national
scale, and from it, there will become Amyotha Hluttaw and Pyithu Hluttaw. He
commented that it is proper to form the two Hluttaws in accordance with the
structure of a Union nation.
He said the English term "House of
Nationalities' portrays political essence of the Legislature where all national
races will hold discussions and coordinations together and the Myanmar term
should have corresponding meaning. He suggested the term Taingyintha Lumyosu
Hluttaw instead of Amyotha Hluttaw.
He said the delegates of the party do not
cling to any fixed name or term and believe that having two Hluttaws is the
political essence.
He went on to discuss formation of committees
and commissions in Pyithu Hluttaw and Amyotha Hluttaw.
In accordance with the fundamental principles
of the National Convention, there will be two Hluttaws, and the aims are:
-- to control hasty writing and promulgation
of laws;
-- to avoid one-sided promulgation of laws
and overwhelming by one Hluttaw only;
-- to be able to ponder over, from all points
of view, laws to be promulgated during the period of their submission to and
discussions by the two Hluttaws;
-- to reflect people's opinions, hopes and
desires through the Pyithu representatives of the two Hluttaws;
-- to share multifarious duties of
legislative bodies between the two Hluttaws;
-- to protect and carry out for the welfare
of masses and classes and people of various strata in the nation;
-- to protect and enable people to enjoy
their fundamental rights, the right to freedom and the right to democracy;
-- to protect and bring about welfare of
members of the Union and national races in accordance with the formation of the
Union.
These are the benefits which will accrue from
constitution of the two Hluttaws, he commented.
In the formation and functions of Pyithu
Hluttaw and Amyotha Hluttaw, it is necessary to have both similarities and
differences between the committees and commissions of the two Hluttaws.
Whether which committee or commission is to
be formed permanently or which should be formed as necessary is a matter for
detailed discussions, and so, it will be sufficient to include the fact
'respective committees and commissions must be formed in the two Hluttaws' as a
fundamental principle. Moreover, a principle should be laid down that 'Details
regarding the committees and commissions to be formed are to be provided in the
Hluttaw law and rules to be promulgated'.
He said the matters submitted were concerned
with the formation of the chapter Legislature and discussions on the formation
of the chapters the Executive and the Judiciary would be submitted. Moreover,
he said, the delegates would continue discussing separation of powers and
functions regarding the three sovereignty powers. He expressed his party's
stand that it will go on to stand honestly and frankly, not losing sight of the
aims for success of the National Convention, common desires and emergence of an
enduring Constitution.
U Hla Maung
U Hla Maung, independent representative-elect
of Kya-in-Seikkyi Township Constituency-1 in Kayin State, submitted a proposal
paper on the chapter the Legislature to be included in the State Constitution.
He said:
Suggestions on the organization of the
Pyidaungsu Hluttaw would be presented in accord with the fundamental principle
that legislative powers shall be distributed to the Pyidaungsu Hluttaw, Region
Hluttaws and State Hluttaws.
He proposed the Pyidaungsu (Union) Hluttaw be
made up of two Hluttaws -- Pyithu Hluttaw (House of Representatives)
constituted with representatives elected from the respective areas throughout
the country and Amyotha Hluttaw (House of Nationalities) constituted with equal
numbers of representatives elected from the Regions and States.
[Number of Pyithu Hluttaw representatives]
Regarding the number of Hluttaw
representatives to be stipulated it would not be appropriate to stipulate one
representative for each township. Usually election of representatives is
conducted on the basis of population ratio. The size and density of population
differ from one township to another depending on the area, economic conditions,
transport and communications and geographic conditions of the townships
concerned. It would not be realistic to stipulate one representative for a
township with a population of some 100,000 and another with a population of
some 10,000. The 1947 Constitution stipulated the number of Pyithu Hluttaw
representatives as 250 because population of the country at the time was about
15 million only. In accord with the 1947 Constitution, the number of
representatives increased from 451 in the first term to 464 in the second term,
475 in the third term and 489 in the fourth term of the Pyithu Hluttaw; it was
evident the number increased in proportion to the population. During the 1990
election, the number of representatives was stipulated at 491. It was
stipulated so not based on the number of townships but on population. Hence, it
should be stipulated one representative for townships with the population of up
to 100,000 and one more representative for those the population of which
exceeds 100,000. The stipulation is based on the growing population. This would
be a formula for a proportional increase in the number of representatives.
[Number of Amyotha Hluttaw representatives]
Concerning stipulation of the number of
representatives in the Amyotha Hluttaw in proportion to that of the Pyithu
Hluttaw, representatives elected in the States for the Pyithu Hluttaw would be
those who are in the majority in the respective States as representatives would
be elected based on the number in the respective regions. Hence, there would be
nothing to worry about a possible vast majority in the Pyidaungsu Hluttaw of
representatives from the Regions. Nationalities mingle with others in the
Regions as in the States and nationalities or non-Bamar representatives would
inevitably be elected.
[Qualifications]
Out of the presentations of the Work
Committee, in connection with the qualifications for the representatives of the
two Hluttaws,
(a) the age limit for the representatives of
the Pyithu Hluttaw and Amyotha Hluttaw should not be 25 and 30 respectively, it
should be 25 or the same;
(c) [sic] the stipulation requiring the
representatives to be resident in Myanmar at least 10 consecutive years is
inappropriate under the present world conditions. In the world today, residing
in isolation is no longer practised. There are more contacts among countries in
social, education, economic and employment matters. Hence it would be
inappropriate to stipulate that persons should be those who have resided in the
country for ten years consecutively considering persons who went abroad and
resided there temporarily for reasons stated above and returned with the
exception of those who have revolted the country, not bee loyal to the State or
committed treason.
Concerning the points stated in paragraph (b)
disqualifying persons from being elected to both Hluttaws, they were believed
to be complete. The phrase 'or failed to have abided by the election law' added
to paragraph (l) would be unnecessary. Unless the failure was due to criminal
intent or moral turpitude, there would arise no case to disqualify such
persons.
The current session of the National
Convention is directed at flourishing of worldly values of justice, liberty and
equality. Now it is in the process of writing, a State Constitution furnished
with such objectives to give guidance to the Union of Myanmar. In a genuine
multi-party democratic nation, except the representatives who have been
invested with the mandate of the people to manage the affairs on their behalf,
no person, group or organization has the right to participate in the Pyidaungsu
Hluttaw, Region Hluttaws and State Hluttaws without the permission of the
Hluttaw. People have the right to elect a person having the right to form a
government and existence of a government depends on the assent of the people;
its existence will cease when the people withdraw their assent. The power of a
government is limited and the State Constitution giving protection to the
people favours no particular person or organization. Every citizen is equal in
the face of law and nobody is above the law.
The proposals thus presented with
constructive criticism are intended for all the people residing in Myanmar to
enjoy worldly values of justice, liberty and equality and for the establishment
of a genuine democratic Union of Myanmar, with no ill will towards or grudges
against any.
Dr. Hmu Thang
Dr. Hmu Thang, independent
representative-elect of Thantlang Constituency in Chin State, submitted the
proposal paper compiled by U Tun Kyaw, independent representative-elect of
Namhsan Constituency and himself on the chapter the Legislature to be included
in the constitution to be written.
[Titles of Hluttaw leaders]
In the 1947 Constitution, head of the Lumyosu
Hluttaw (House of Nationalities) was called "Nayaka" (Speaker) and
head of the Pyithu Hluttaw (Chamber of Deputies) "Okkahta" (Speaker)
and were granted appropriate salary, privileges and rights compatible with his
station.
Similarly, the heads of Hluttaws of other
democracy nations and the Unions were found to have deserving positions and
names. In the United States of America and India, Vice-Presidents take charge
of the Senate or the Upper House and the head of the House of Representatives
or Lower House are elected from among the representatives and called the
Speaker. In the constitutions of most countries, the head of the Pyithu Hluttaw
is called the speaker. There is difference in the Upper House. Some countries
call the President and some the Chairman. Rights and privileges have been
granted according to their volume of work and position.
In the constitution now being written, the
heads of Hluttaw should be elected from the Hluttaw representatives and called
"Okkahta" (chairperson); the Pyidaungsu system would then be evident,
the two Hluttaws would possess relevant characteristics, the heads would be
able to supervise the Hluttaw sessions effectively and the term would differ
from other committees and organizations.
Hence, the head of the Amyotha Hluttaw should
be called as Amyotha Hluttaw "Okkahta" (Chairperson of House of
Nationalities) and deputy head as "Dutiya Okkahta"
(Vice-Chairperson); and head of the Pyithu Hluttaw as Pyithu Hluttaw
"Okkahta" (Chairperson of House of Representatives) and deputy head
as "Dutiya Okkahta" (Vice-Chairperson).
Similarly, heads of Region Hluttaws and State
Hluttaws should be called Okkahta and Dutiya Okkahta (chairperson and
vice-chairperson).
[Qualifications of Hluttaw members]
In connection with the clarifications of the
Chairman of the National Convention Convening Work Committee on the
qualifications of the Hluttaw representatives, the following paragraphs should
be formulated as fundamental principles:
(1) Pyithu Hluttaw representatives shall be
natives of the Regions or States from which they have been elected,
(2) Amyotha Hluttaw representatives shall be
natives of the States [sic] from which they have been elected and they shall be
resident in the States or Regions from which they have been elected;
(3) (a) representatives of Region Hluttaws
shall be resident in the respective Regions,
(b) representatives of State Hluttaws shall
be resident in the respective States,
(4) Tatmadaw servicemen Hluttaw
representatives nominated as such by the Defence Services Commander-in-Chief
shall be natives of the respective States; the Defence Services
Commander-in-Chief is to nominate Tatmadaw servicemen of other Regions or
States only when there are no native Tatmadaw servicemen in the State
concerned.
The number of Tatmadaw servicemen's
participation in the Hluttaws would be discussed. Chairman of National
Convention Convening Commission Lt-Gen. Myo Nyunt stated in connection with the
last of the six objectives of the National Convention -- for the Tatmadaw to be
able to participate in the national political leadership role of the future
State -- that the reason has been because of the noble and genuine good will to
carry on and maintain the results derived from the efforts of the Tatmadaw for
national peace and tranquillity and further raise the momentum of economic and
social progress made in the country.
In the Noble Desire of the Tatmadaw, it was
stated thus: "Although the State Law and Order Restoration Council has had
to take over, due to unavoidable circumstances, the sovereign power of the
State to prevent the Union from disintegration and for ensuring the safety and
security of the lives, homes and property of the people, it wishes to
retransfer State power to the people, in whom it was initially vested, through
democratic means within the shortest time possible. Therefore, the entire
people are urged to give all their cooperation to ensure the rule of law and
for prevalence of peace and tranquillity."
Secretary-1 of the State Law and Order
Restoration Council Lt-Gen. Khin Nyunt clarified at the 110th Press conference
that authorities starting from Senior General Saw Maung had spoken time and
again that the Tatmadaw did not covet power; and truly it had no intention to
hold on to power for long.
In reference to these the Tatmadaw is found
to be an organization which is guiding the Republic of the Union of Myanmar to
become a new nation where worldly values of justice, liberty and equality and
genuine multi-party democratic practices flourish and it is evident that it has
no desire to hold on to power for long.
[Only temporary Tatmadaw representation in
Hluttaws]
Tatmadaw servicemen Hluttaw representatives
would thus include in the Pyithu Hluttaw, Amyotha Hluttaw and Region/State
Hluttaws according to the ratio presented by the Chairman of the Work Committee
in the first term of the Hluttaw. Participation of the Tatmadaw servicemen
Hluttaw representatives would be reduced by half or 50 per cent in the second
term. Beginning from the third term, Pyithu Hluttaw would be constituted with
the representatives truly elected by the people. From the third time [sic], if
Tatmadaw servicemen whish to be included in the Pyithu Hluttaw they would have
to retire from service as other State service personnel do and seek the support
of the people to be elected.
This had been proposed expecting that there
would be an appreciable stage and stability in the country's peace and
tranquillity and economic and social progress during the two terms or ten years
after the beginning of the first Hluttaw. Moreover, one of the objectives of
the National Convention -- flourishing to genuine multi-party democratic system
-- is believed to have been fulfilled at the time.
In conclusion, he said the discussions
focussed on additional points believed to be of national public interests to be
applied in the country.
U Htwang Kho Thang
U Htwang Kho Than, Independent
Representative-elect of Tamu Constituency, Sagaing Division, a Chin national,
asked all other to bear with him with broadmindedness if there were weaknesses
in his usage of Myanmar language or in his political thoughts.
He said he would not go in detail into the
points for discussion contained in the clarification given by the Chairman of
the National Convention Convening Work Committee on 2-9-94, but would only
discuss points that he thought would need discussion, and he would discuss and
propose matters with the concept that there be no ar-ne-de (reluctance for
non-compliance).
He said he would speak of "national
politics" as he understood it; in multi-party democracy countries, when
public leaders to lead the State are to be elected, political parties are
founded; they declare their policies; they compete in general elections; if
liked and elected by the people, they lead the State for the people and serve
the national interests; they pursue national politics for a prescribed period
on the basis of political parties to so serve national interests.
Among party organizations or individuals who
get opportunities to lead in serving the national interests, there might be
those who ignore national interests and strive with bias for their own personal
interests or partisan interest for their own party exclusively. Such
individuals and party organizations will face punishment by the votes of the
people and they will not get opportunity to participate in the role of
leadership on the people another time. So any party, organization or person
wishing to participate in the national political leadership role is to seek the
wishes of the people.
[Amyotha Hluttaw]
For equal opportunity of participation in
Amyotha Hluttaw, it should be formed with 174 members with the inclusion of
-- 17 members from Shan State -- five
representing five self-administered areas in the state, and 12 representing the
whole state by virtue of proportional representation;
-- 13 members from Sagaing Division -- one
representing a self-administered area in the Division, and 12 representing the
whole division by virtue of proportional representation.
[Qualifications of Hluttaw members]
In connection with qualifications stipulated
for Pyithu Hluttaw members, Amyotha Hluttaw members, Region Hluttaw members and
State Hluttaw members, I am of the opinion that anyone
(a) who is at least fully 21 years old
(b) who is a citizen born of parents both of
whom are citizens
(c) who is not covered by the provisions with
the exception of Section 10 (Hta-wum-be) of the Multi-party Democracy General
Election Law of 1989 should have the right to stand for election. Only vital
points need be included in the Constitution. Election law and rules should not
be included in the Constitution bu made separately.
In conclusion he said that he had presented
proposals on the basis of his views of democracy and fundamental rights of man,
political views and attitudes on the Union and national races, views for
eternal stability of the Union, views and attitudes for safeguarding of
minority rights, on the role of the people's representatives and Tatmadaw
members in various Hluttaws, and stipulations of qualifications of Hluttaw
members, with the conviction that they would be of service to the Union. (NLM
12/ 5)
[U Aung Thein]
U Aung Thein, Independent
Representative-elect of Ywangan Constituency, Shan State, said that, if it is
to be done on the basis of population, as laid down in the basic principle, the
right to elect one more representative is to be given to each and every
township which has a population of more than 300,000; only then will it be fair
and equitable; but in fact, such right is to be given for townships in
decreasing order of population only till the number of representatives reach
the maximum stipulated 330; so it is more on the basis of township rather than
population; accordingly, instead of saying "on the basis of population,
according to township" it would be more correct to say "on the basis
of township, according to population". So,
[Representation by township, not population]
In Sub-paragraph (Kagyi) in connection with
formation of Pyithu Hluttaw, it should read "Pyithu Hluttaw members, not
exceeding 330, elected "on the basis of township, according to
population" and
In Sub-paragraph (Kagyi) in connection with
formation of the Pyidaungsu Hluttaw, it should read "Pyithu Hluttaw formed
with Hluttaw members elected on the basis of township, according to population,
and Tatmadaw member Hluttaw members nominated by the Commander-in-Chief of the
Defence Services.
In other matters he proposed, that it should
be laid down, with additions, as follows:
[Residence requirements]
In connection with formation of the Amyotha
Hluttaw, it should be laid down as follows:
-- 168 Amyotha Hluttaw members elected
equally, 12 from each Region or State (elected from among persons who reside
settled in that Region or State), including one representative from each
self-administered division or zone if any in that Region or State;
In connection with the formation of Region or
State Hluttaw, it should be laid down as follows:
-- Region or State Hluttaw members elected,
two from each township (elected from among persons who reside settled in that
township) to that Region or State Hluttaw.
In connection with the stipulation of
qualifications of Amyotha Hluttaw members, it should be laid down as follows:
-- one must have qualifications to have the
right to stand election to the Pyithu Hluttaw except for qualification of age
and must also be residing settled in that Region or State;
In connection with the stipulation of
qualifications of Region or State Hluttaw members, it should be laid down as
follows:
-- one must have qualifications to have the
right to stand for election to be Pyithu Hluttaw representatives and must also
be residing settled in the Region or State;
[Terms of Tatmadaw members]
In connection with the formation of the
Pyithu Hluttaw, it should be laid down as follows:
As paragraph (Gange) after (Kagyi) and
(Khagwe),
-- Tatmadaw member Pyithu Hluttaw members
shall not serve more than two consecutive terms on the Pyithu Hluttaw;
In connection with the formation of the
Amyotha Hluttaw, it should be laid down as follows:
As paragraph (Gange) after (Kagyi) and
(Khagwe),
-- Tatmadaw member Amyotha Hluttaw members
shall not serve more than two consecutive terms on the Amyotha Hluttaw;
As emphasized by the Chairman of the
Commission, and as laid down in the 104 basic principles to strive for
conformity with and for further flourishing of the noblest and worthiest of
worldly values such as justice, liberty and equality, he proposed that the term
"personnel in civil service" be replaced with "personnel in
State service" in Sub-paragraph (Nya) concerning persons who have no right
to stand for election as Pyithu Hluttaw members.
He concluded his discussion saying except for
the above he had no other comments to make as regards other usages including
Pyithu Hluttaw, Amyotha Hluttaw and Pyidaungsu Hluttaw, or other principles
that are in nature procedures.
National races delegates
U Kyaw Din (a) U Htay Yeh, member of the
national races delegates group, of Loikaw, Kayah State, submitted a proposal
paper compiled by the national races delegates group on detailed principles to
serve as bases in the formation of the Legislature to be included in writing
the Constitution.
He suggested that the Hluttaw elected on the
basis of population be called Pyithu Hluttaw (House of Representatives) and the
Hluttaw with equal number of representatives elected from regions and states be
called Amyotha Hluttaw (House of Nationalities). So, regarding formation of the
Pyidaungsu Hluttaw, the following should be laid down as principle to serve as
bases:
-- Pyidaungsu Hluttaw consists of two
Hluttaws:
(a) Pyithu Hluttaw (House of Representatives)
constituted with Hluttaw representatives elected on the basis of population and
Tatmadaw member Hluttaw representatives nominated by the Defence Services
Commander-in-Chief;
(b) Amyotha Hluttaw (House of Nationalities)
constituted with equal number of representatives elected from regions and
states and Tatmadaw member Hluttaw representatives nominated by the Defence
Services Commander-in-Chief.
Pyithu Hluttaw should be constituted with a
maximum of 440 Hluttaw representatives according to the population of the
country and to enable the participation of the majority of the national races
residing in the Union, he said. He proposed that it be constituted with 330
Hluttaw representatives-elect and 110 Tatmadaw member Hluttaw representatives
and said it is assumed that it is an appropriate ratio.
So, regarding the constitution of the Pyithu
Hluttaw, the following should be laid down as principle to serve as bases:
-- The Pyithu Hluttaw shall be constituted
with a maximum of 440 Hluttaw representatives:
(a) Hluttaw representatives, no exceeding
330, elected on the basis of population;
(b) Tatmadaw member Hluttaw representatives,
not exceeding 110, nominated by the Defence Services Commander-in-Chief.
He proposed the following to be laid down as
detailed principle to form as bases:
-- The term of the Pyithu Hluttaw is five
years from the date on which the first session of the Pyithu Hluttaw begins.
Regarding formation of the Amyotha Hluttaw,
he said Amyotha Hluttaw should be constituted not only with Hluttaw
representatives elected in equal number from regions and states but also with
Tatmadaw member Hluttaw representatives nominated by the Defence Services
Commander-in-Chief, he said.
Naturally, Pyithu Hluttaw representatives
must be more than Amyotha Hluttaw representatives, he said and proposed that
the number of Pyithu Hluttaw representatives be double that of Amyotha Hluttaw
representatives. And so, he said, if the Pyithu Hluttaw is formed with a
maximum of 440 Hluttaw representatives, Amyotha Hluttaw be formed with 220
Hluttaw representatives or around that figure. He said the number of Amyotha
Hluttaw representatives, including Tatmadaw member Hluttaw representatives, for
each region or state should be designated as 16 and as many national races as
possible should be included in the Amyotha Hluttaw. Only then would they have
an opportunity to submit matters concerning their self-administered region and
self-administered state direct to the Amyotha Hluttaw and discuss them.
Concerning the formation of the Amyotha
Hluttaw, he proposed the following to serve as detailed principle to serve as
bases:
-- The Amyotha Hluttaw shall be constituted
with a maximum of 224 Hluttaw representatives:
(a) 12 representatives elected from each
region or state including one representative each from the self-administered
divisions or self-administered zones, if there are any in the region or state
concerned, totalling 168 Amyotha Hluttaw representatives;
(b) Four Tatmadaw member representatives from
each region or state nominated by the Defence Services Commander-in-Chief,
totalling 56 Amyotha Hluttaw representatives.
U Ba Thaung
U Ba Thaung, member of the national races
delegates group, of Kyunsu Township, Taninthayi Division, submitted the second
part of the proposal paper.
He said a fundamental principle has been laid
down that the State shall form a commission for the participation of national
races with appropriate sizes of population in the legislature and the executive
of the respective Region or State and self-administered area to enable them to
deal with their national races affairs. He said it is assumed that instead of
forming a commission to deal with the matter, it should be prescribed that a
national race, if it has such and such size of population, has the right to
participate as the national races delegates in the legislature and
administration of the respective Region or State and self-administered area.
Instead of forming a commission, statistics and evidence of department
concerned which keep demographic records should be used, he commented and said
that as the nation has a population of 44 million, a national race having a
population which accounts for 0.1 per cent of the national population should
have the right to participate in the legislature and administration of the
respective region or state and self-administered areas. In addition, he said,
if persons of a national race having a population of less than 44,000 wish to
submit their affairs to the Region or State Hluttaws, they will have the right
to submit through the Region or State Hluttaw elected from their
constituencies.
If fundamental principles are laid down so,
national unity which all aim at will be further consolidated, and regarding the
formation of the Region or State Hluttaw, the following should be laid down as
detailed principles to serve as bases:
-- Region or State Hluttaw shall be
constituted as follows:
(a) in regions or states, Region or State
Hluttaw representatives -- two elected from each township;
(b) in regions, Region Hluttaw
representatives -- one elected from each national race, having a population
which constitutes 0.1 per cent of the population of the State, of the remaining
national other than those who have already got the respective region or a
self-administered area in that region;
(c) in states, State Hluttaw representatives
-- one elected from each national race, having a population which constitutes
0.1 per cent of the population of the State, of the remaining national races
other than those who have already got the respective state or a
self-administered area in that state;
(d) Tatmadaw servicemen Hluttaw
representatives nominated by the Defence Services Commander-in-Chief in a
number equal to one-third of the total Hluttaw representatives elected under
paragraphs (a) and (b) or (a) and (c).
Chairman of the National Convention Convening
Commission Lt-Gen. Myo Nyunt said in his address to the National Convention
plenary session on 2 September 1994, 'Moreover, it is necessary to especially
take care in the course of discussions not to cause any harm to the positive
foundations of solidarity of the national races that are the results of endeavours
of the State Law and Order Restoration Council. Henceforth, in the ongoing
discussions, we would like the delegates to strive to obtain more of principles
that will contribute towards the solidarity of the national races, which is our
immediate as well as long-term need", he said and called on the delegates
to have magnanimity and broad-mindedness and strictly adhere to the National
Convention Procedures in accordance with the six objectives of the National
Convention so as not to cause any harm to the positive foundations of
solidarity of the national races. (NLM 12/6)
Plenary
Session--Executive
Dec. 6: The Plenary Session of the National
Convention continued, with 519 of 590 delegates present. Proposal papers on the
Executive were presented by the Peasants Delegates Group and the Workers
Delegates Group [full texts of "salient points" as published in NLM]:
Peasant delegate group
U Maung Lwin, delegate of Yebyu Township,
Tanintharyi Division, of peasant delegate group, submitted a proposal paper on
"the structure of the executive". He said the paper would be
submitted in three parts--first part by himself, second part by U Kyi Shwe of
Oktwin Township, Bago Division, and third part by U Win Thein of Natmauk
Township, Magway Division. He said:
In appointing Pyidaungsu (Union) ministers
and assigning duties to them, the President of the State should follow the
method of appointing and assigning duties to them with the approval of the
Pyidaungsu Hluttaw. To be able to do so, he must have the right to choose
suitable persons who meet the prescribed qualifications from among the Hluttaw
representatives or non-Hluttaw representatives. Moreover, the President is to
obtain nomination of the Tatmadaw servicemen from the Defence Services
Commander-in-Chief to appoint them Pyidaungsu ministers for defence, security,
home affairs and border areas portfolios. The President is to appoint the
candidates after receiving the approval of the Pyidaungsu Hluttaw. In so doing,
he is to designate portfolio or portfolios for each Pyidaungsu minister. The
President is responsible for notifying the Pyidaungsu Hluttaw the matter of
appointing Pyidaungsu ministers and assigning duties to them. It should be
stipulated that Pyidaungsu ministers are responsible directly to the President
of the State.
[Attorney-General]
He said the Pyidaungsu Attorney-General
should be stipulated to be a member of the Pyidaungsu government and he should
be directly responsible to the President. So, detailed principles should be
laid down in connection with the appointment and assigning duties to the
Pyidaungsu Attorney-General as follows:
1. The President of the State shall get the
approval of the Pyidaungsu Hluttaw in appointing and assigning duties to a
person from among the Hluttaw representatives or non-Hluttaw representatives
having the following qualifications as the Attorney-General in order to get
legal advice and assign duties of a legal character: --
(a) who has attained the age of 45 years;
(b) with the exception of age limit, having
the qualifications prescribed for Pyithu Hluttaw representatives;
(c) (1) who has served as High Court Judge
for at least five years;
(2) who, if he is a judicial officer or law
officer, has been for at least ten years in a position not lower than region or
state level, or [sic]
(3) who has been an Advocate of High Court
for 15 years' standing;
(4) who is assumed by the President to be a
legal expert of prominent reputation.
(d) who is loyal to the State and the
citizens;
2. Pyidaungsu Hluttaw shall not have the
right to reject the nominee to be appointed Pyidaungsu Attorney-General unless
it can prove clearly that he is not qualified to be Attorney-General;
3. the Pyidaungsu Attorney-General is a
member of the Pyidaungsu government;
4. the Pyidaungsu Attorney-General is
directly responsible to the President.
U Khi Shwe
[Auditor-General]
U Kyi Shwe of Oktwin Township, Bago Division,
submitted the second part of the proposal paper. He discussed matters
concerning appointment, assigning duties, impeachment, term of office,
resignation, termination of duties and filling the vacant post of Pyidaungsu
Auditor-General and Deputy Auditor-General. He said the President should
appoint a suitable person who meets the prescribed qualifications as the
Auditor-General to inspect the budget accounts of the government departments
and present them to the respective Hluttaws. The Naing-ngan-daw (State)
Auditor-General should be called Pyidaungsu (Union) Auditor-General for change.
In appointing and assigning duties, there should be the right to do so from
among the Hluttaw representatives or non-Hluttaw representatives. The President
is to submit the nomination to the Pyidaungsu Hluttaw for approval.
[Civil service board]
He said in connection with formation of
Pyidaungsu (Union) Civil Service Board, the following principles should be laid
down as bases:
1. the President shall form the Union Civil
Service Board to perform the duties of selecting and training civil service
personnel and to prescribe civil service rules and regulations;
2. the President shall appoint from five to
nine members, inclusive of the Union Civil Service Board Chairman and assign
them duties;
3. the President shall appoint those as the
Chairman and members of the Union Civil Service Board who have the following
qualifications:--
(a) those who have attained the age 50;
(b) with the exception of age limit, those
who have the qualification prescribed for Hluttaw representatives;
(c) well-experienced intelligentsia and
intellectuals;
(d) those who are loyal to the State and the
citizens;
(e) those who are not party members;
(f) those who are not Hluttaw
representatives;
4. the Chairman and members of the Union
Civil Service Board shall be directly responsible to the President;
5. the term of office of the Chairman and
members of the Union Civil Service Board shall generally be the same as the
term of the President; and
6. the duties, rights, privileges,
resignation and removal from office of the Chairman and members of the Union
Civil Service Board shall be prescribed by promulgating a law.
[Region/State government]
The Region/State Advocate-General should be a
member of the Region/State government as in the case of the Union
Attorney-General. In the Region/State, he should be called Advocate-General to
be different from the Union Attorney-General. The Region/State governments
should be formed with Region/State Chief Ministers, Region/State ministers and
Region/State Advocate-General.
He said Region/State Okkahta (chairmen)
should also be appointed Region/State Ministers and assigned duties. Moreover,
Hluttaw representatives elected to undertake national race affairs in the
respective Regions/States would have to be appointed as Region/State Ministers
and assigned duties. There should include exceptions relaxing the age limit
stipulated for those persons when necessary.
[Region/State Chief Ministers]
In connection with appointing Chief Minister
for the respective Region/State and assigning him duties, detailed principles
should be laid down as follows:
The President shall
(a) choose a suitable person from among the
respective region or state Hluttaw representatives having prescribed
qualifications,
(b) send the nomination to the respective
region or state Hluttaw for approval.
6. [sic] The President shall appoint the
Hluttaw representative approved by the respective region or state Hluttaw as
the Chief Minister of the region or state.
7. The region or state Hluttaw does not have
the right to reject the Hluttaw representative nominated by the President for
appointment as Chief Minister unless it can clearly prove that the nominee is
not qualified for the Chief Ministership.
[Region/State Ministers]
As regards appointment of region or state
Ministers, it should be laid down as detailed basic principles that --
1. In order to appoint region or state
Ministers, the region or state Chief Minister shall
(a) select suitable persons from among those
who possess prescribed qualifications from among members of region or state Hluttaw
or from among non-members,
(b) ask from the Defence Services
Commander-in-Chief nomination of suitable Tatmadaw servicemen to assign
security and border affairs responsibilities,
(c) ask from the leading body of
self-administered division or zone in the region or state nomination to appoint
region or state Ministers [sic],
(d) seek from respective election commission
nomination of elected Hluttaw representatives to undertake national race
affairs in the region or state.
2. The Chief Minister of the region or state
is to compile the list of names of persons he has selected, and names of
Tatmadaw members nominated by the Defence Services Commander-in-Chief and
submit it to the region or state Hluttaw and seek its approval.
3. The region or state Hluttaw shall have no
right to reject the region or state Chief Minister's nominations for
appointment as Ministers, unless it can show clear proof of want of
qualifications prescribed for region or state Ministers.
4. the region or state Chief Minister is to
submit to the President of the State to appoint as region or state Ministers
persons approved by the region or state Hluttaw, chairmen of self-administered
divisions or zones, and Hluttaw members elected to undertake national race
affairs.
5. The President is to appoint as region or
state Ministers the persons submitted by the region or state Chief Minister. In
so doing he is to assign portfolios to each in coordination with the Chief
Minister.
U Win Thein
U Win Thein of Natmauk, Magway Division,
submitted the third part of the proposal paper compiled by the peasant
delegates group.
[Region/State Auditor-General]
He said detailed fundamental principles
should be laid down for the Region or State Chief Minister to select a person
possessing prescribed qualifications and appoint him the Region or State
Auditor-General and assign him duties to be able to audit receipts and
expenditures and submit them to the Region or State Hluttaw concerned and to
prescribe resignation, termination from duty, filling the vacant post and
deeming him to have retired if he is a civil personnel.
[Self-administered areas]
He spoke of the need to form organizations
for the administration of the self-administered division or the
self-administered zone and suggested the administrative organization for the
self-administered division be called 'the self-administered division leading
body (Oo-zi Aphwe)' and that for the self-administered zone be called the
'self-administered zone leading body (Oo-zi Aphwe)'.
[Union territories]
He went on to discuss administration of the
Union territory.
A principle to serve as basis has been laid
down that areas of special situation in connection with defence, security,
administration and economy of the Union shall be prescribed as Union territories
and placed under direct administration of the President, he said. Being capital
of the State, Yangon City is not only an area of significant situation in
connection with defence, security, administration and economy of the State but
also a location of various embassies, he said. He spoke of the reason of
designating Yangon City as a Union territory placed under direct administration
of the President, saying it is a territory having diplomatic relations,
services undertaken with cooperation of international organizations and foreign
trade as it is a crucial place having international aviation and maritime
links.
The following should be laid down as detailed
principles to serve as bases:
1. All districts and townships existing
within Yangon City development areas on the day the State Constitution comes
into force are in Yangon City that is the Union territory.
2. The President of the State has authority
to redelineate as necessary districts and townships in Yangon City that is the
Union territory.
3. A Yangon City Council shall be formed to
exercise executive power delegated by the President of the State in Yangon City
that is the Union territory.
4. The President of the State is to prescribe
qualifications of the chairman and members of the Yangon City Council.
5. The President of the State shall appoint
chairman and members of the Yangon City Council.
6. The President of the State shall obtain
from the Commander-in-Chief of Defence Services names of members of the
Tatmadaw and appoint them as Yangon City Council members to integrate and
coordinate security responsibilities.
7. Yangon City Council chairman and members
shall be directly responsible to the President of the State.
8. The President of the State
(a) may cause resignation or terminate the
services of the chairman or any member of Yangon City Council if not satisfied
with his performance of duties;
(b) may appoint in accord with the provisions
of the State Constitution replacement in the post of chairman or member of the
Yangon City Council which become vacant due to various reasons;
(c) if it concerns members of Tatmadaw
nominated by the Commander-in-Chief of Defence Services, it shall be
coordinated with the Commander-in-Chief of Defence Services.
9. Responsibilities and rights and privileges
of the chairman and members of the Yangon City Council are to prescribed by
enactment of law.
10. The head of General Administration
Department concerning Yangon City is the secretary to Yangon City Council. The
General Administration Department concerning Yangon City is the office of
Yangon City Council.
He went on to submit proposals on detailed
principles to serve as bases concerning district-level administration which
should be included and provided in the State Constitution.
He cited facts that the head of executive of
the State is the President of the State, that the executive power of the State
is distributed among the administrative organs of Pyidaungsu, regions or
states; self-administrative power shall be distributed to self-administered areas
as stipulated by the State Constitution, and that Pyidaungsu, regions, states,
self-administered areas and districts' executive organs include Tatmadaw
servicemen nominated by the Defence Services Commander-in-Chief to undertake
responsibility of defence, security, border administration etc. He said the
facts contributed to further consolidation of national unity and are in
conformity with the point to build a genuine democratic State.
[District-level administration]
He spoke of the need for district-level
administration to have the full force of administrative machinery as a district
is organized with townships and accordingly, the district-level administration
has to deal with differences between one area from another, provide supervision
to townships practically implementing security, administration, economy, social
affairs, education and general development of vast areas and plans and projects
of the State, serve as a link between the upper and lower levels, inspect
progress of implementation of projects and manage security, administration and
community peace and tranquillity. He said there will be weaknesses in
inspection of projects concerning economy, education, social and development
foundations if one kind only, Tatmadaw members assigned by the
Commander-in-Chief of Defence Services is included in the administrative force
of a district to discharge security, prevalence of law and order and community
peace and tranquillity.
He said it is considered whether
administration by group is better than individually undertaking as the district
administrator or township administrator, whether reciprocal control will
further signify the State Constitution and whether it will be a load for the
personnel concerned to be charged with administrative functions in addition to
office duties and so our delegates group is of the opinion that there should be
an administrative system inclusive of persons selected and assigned.
[Wards and Village-tracts]
Discussing ward and village-level
administration, he said it is a level in direct contact with the people and so
important. He suggested that suitable persons be appointed and assigned duties,
ward and village-tract administrative bodies be formed and duties and rights be
prescribed by enactment of law.
He said that regarding formation of
ward/village-tract bodies, the following should be laid down as fundamental
principles to serve as basis:
1. Ward/village-tract administrative body
shall be formed in every ward/village-tract.
2. The ward/village-tract administrative body
consists of three members.
3. The ward/village-tract administrative body
consists of chairman, secretary and member nominated by the chairman of the
district administrative body.
4. Ward/village-tract administrative board
[sic--presumably "body" was meant] members shall possess the
following qualifications:
(a) being a person who has completed 30 years
of age;
(b) being a person who is morally upright;
(c) being a person who is a settler in the
ward/village concerned;
(d) being a person who is loyal to the State
and nationals;
(e) being a person who is not member of any
political party.
5. Duties, rights and privileges of
ward/village-tract administrative bodies shall be prescribed by enactment of
law.
He said the delegates group submitted the
proposals, believing they would contribute to perpetuation of sovereignty and
non-disintegration of national solidarity, and would respect discussions and
other proposals of common opinion which will benefit the State and nationals.
Worker delegates group
U Wan Htain of the worker delegates group,
delegate from Thanbyuzayat Township, Mon State, said a sovereign independent
government was needed; it must be able to safeguard peace and security life of
citizens life and promote their socio-economic well-being; it must practise
well-founded and strong executive system that can run freely, actively and
dynamically.
He said detailed basic principles should be
laid down as follows:
1. The executive head of the State is the
President of the State;
2. (a) The executive power of the State is
distributed among the Union, Regions and States;
(b) Self-administration powers are delegated
to self-administered areas as prescribed by the Constitution;
3. The Union government shall be set up with
the following persons:
(a) President of the State
(b) Vice-Presidents
(c) Union Ministers
(d) Attorney-General of the Union;
4. The President of the State may
(a) prescribe Union ministries as necessary,
make changes or additions thereto;
(b) prescribe the number of Union ministers
as necessary, and increase or decrease the number;
5. Union ministers must possess the following
qualifications:
(a) they must be at least fully 40 years of
age
(b) they must have qualifications prescribed
for Pyithu Hluttaw representatives except of the qualification of age
(c) they must be loyal to the State and the
citizenry.
[Union Ministers]
The President of the State is to appoint
Union ministers to form the Union government; it is highly important to
correctly assess qualifications and abilities for these appointments, as they
will have to shoulder heavy responsibilities of the State.
According to the principle laid down, he
said, the President of the State is to get the nomination from the
Commander-in-Chief of the Defence Services to appoint Union ministers for
defence, security and home affairs and border affairs. The Commander-in-Chief
of the Defence Services is to take great care to nominate only fully qualified
persons. The nomination is to be presented for approval by the Pyidaungsu
Hluttaw. It will be highly essential for the President of the State and
Pyidaungsu Hluttaw to be guided by common stand and views with consideration of
the interests of the State, free of bias, in coordinating and deciding on the
nominations. As Union ministers are the ones to wield executive power, they
have to be persons who will serve the interests of the people actively and
uprightly. It is to be stipulated that the Pyidaungsu Hluttaw has no right to
turn down anyone in the nomination of the President of the Union if it cannot
show clear proof of any wanting in qualifications.
The President of the Union is to designate
ministries to Union ministers who would be taking responsibilities
individually. If he deems it suitable in the interests of the State to appoint
Tatmadaw members as Union ministers also for ministries other than those for
defence, security/home affairs, and border affairs, he should have the right to
proceed in coordination with the Commander-in-Chief of the Defence Services.
(NLM 12/7)
Dec. 7: The Plenary Session of National
Convention met, with 522 of 590 delegates present. Proposal papers on the
Executive were submitted by the worker delegates group (final portions), the
intellectuals and intelligentsia group, and the Service personnel group [full
texts]:
[Worker delegates group, cont.]
U Win Htut Nyunt of the worker delegates
group, delegate from Hpa-an Township, Kayin State,
[Auditor-General]
said the President of the State is to select
a fully qualified person and appoint that person as the Auditor-General. He
should have the right to select and appoint a suitable person from among
Hluttaw members or from among others. He should present his nomination to the
Pyidaungsu Hluttaw and seek its approval thereon.
Rights and ways should be prescribed in the
interests of the citizenry to impeach the Auditor-General of the Union in case
of the latter's moral turpitude, breach of allegiance to the State, and
violation of the provisions of the Constitution.
[Public Service Commission]
Detailed principles are to [be] laid down for
the President to select qualified persons as chairman and members of the Public
Service Commission. As they have to have rich experience, knowledge and wisdom,
detailed principles have to be laid down as regards qualifications and age
stipulations for them. It should also be stipulated that they must have
qualifications required of Hluttaw members except the age stipulation and must
also be free of party politics.
[Region/State governments]
Union government and Region or State
government must have proper links and delineations must be laid down in detail
with firm provisions so as not to have any cause for arguments in the long run.
The President of the State is to select one
from among Region or State Hluttaw members for appointment as chief minister of
the Region or State. It should be laid down that there is no right to select
anyone from among others for this purpose.
So, he said, detailed principles should be
laid down as follows:
1. For Region or State, there shall be Region
or State government;
2. Region or State government shall be formed
with the following:
(a) Chief Minister of Region or State
(b) ministers of Region or State
(c) Chief Attorney of Region or State
3. The President of the State may
(a) prescribe Region or State ministries as
necessary, make changes or additions thereto;
(b) prescribe the number of Region or State
ministers as necessary, and increase or decrease the number;
Region or State governments are highest
bodies of executive power in Region or State. They must have integrity and
esteem of the people of Region or State. Rights and ways should be prescribed
to impeach the Region or State ministers in case of the latter's moral
turpitude, breach of allegiance to the State and the citizenry, violation of
the provisions of the Constitution and deterioration of qualifications.
U Soe Myint
U Soe Myint of the worker delegates group,
delegate from Sagaing Township, Sagaing Division, said that as the chief
minister of Region or State is to examine the budget and present it to the
Region or State Hluttaw, there should be provision for right to appoint the
auditor-general of Region or State. Detailed principles should be laid down prescribing
the latter's qualifications, status (it should be that of region or state
minister), age stipulation, responsibility, impeachment, resignation,
termination, retirement and so on.
[Self-administered area]
For self-administered division and zone,
executive bodies need to be formed; they should be called oozi aphwe (leading
council); they will exercise powers conferred by the Constitution; the division
or zone will also get legislative power conferred by the Constitution; so
detailed principles should be laid down explicitly.
Self-administered division and
self-administered zone are to be equal in status; their oozi aphwe are to be
formed with Region or State Hluttaw members elected by townships in the
self-administered division or self-administered zone and Tatmadaw members
nominated by the Commander-in-Chief of the Defence Services to be given
security and border affairs duties; so are detailed principles to be laid down.
Also to be prescribed are principles
concerning methods to elect the chairman of the oozi aphwe of self-administered
division or zone, term of office, impeachment, resignation, termination,
replacement, retirement and so forth.
In the oozi aphwe of self-administered
division or zone, one fourth of the total number of members are to be Tatmadaw
member representatives, and he said it was appropriate.
It is also appropriate that the head of the
general administration department of self-administered division or zone is to
serve as secretary to the oozi aphwe of that division or zone as it will be
conducive to greater effectiveness in administration.
[Union territories]
It has been laid down as a principle that
Yangon, the capital of the State, is prescribed a Union territory. Detailed
principles are to be laid down for formation of the Yangon City Council and
right of appointment of its chairman, and other matters.
[Local government]
District and township administrative bodies
are ones dealing directly with the people. The majority of people regard them
as the government. Their actions have a reflection on the government. There can
be taken many lessons from past experiences. They were supposed to represent
the people as well as the higher levels of authority; but even as they did have
some strong points, the people lost faith in them and turned their backs on
them. We believe we must take lessons from that and shape our present-day
district and township administrations to be in keeping with our cherished
objective for flourishing of genuine multi-party democracy system.
We have presented matters as we think best.
The delegates are at liberty to consider and determine them in accord with
majority will.
Intellectuals and intelligentsia
U Pe Than (Superintending Engineer) of the
intellectuals and intelligentsia delegates group submitted the group's proposal
paper on the structure of the chapter "The Executive" to be included
in the Constitution. He said:
Necessary laws have to be promulgated in the
world nations to protect the citizens and their property and to enable them to
enjoy their rights fully or in other words to protect them from the dangers of
anarchism. There has to be the executive body to see that such laws are abided
by the citizens. If their are law breakers in spite of laws and the government
in existence, judicial bodies have to take preventive and punitive measures.
They have to protect the interests of the citizens. That is why the
legislature, the executive and the judiciary are described as the three
branches of sovereign power of the people which must be exercised properly.
He noted the National Convention is
formulating a new structure of the executive conforming to the conditions in
the country after studying the world designs of the executive and history of
Myanma executive structure. Myanmar is home to numerous national races mingling
in friendship and cooperation. Suitable executive design for Myanmar is to be
opted. It must serve the interests of the people encompassing all the national
races of the country ensuring the people's unity, peace, tranquillity and
progress, and it should be truly democratic reflecting the sovereign power of
the people.
[Checks and balances]
He said clarifications of the Work Committee
Chairman U Aung Toe made at the plenary session of the National Convention on 2
September 1994 conform to the points just stated. They also conform to the
fundamental principle laid down by the National Convention that three powers of
the State shall be distributed and exercised through reciprocal control, check
and balance. If the three powers are not distributed but vested in a single
person or single group this could lead to dictatorship of one person or a
single party; if the three powers are vested to the legislative, executive and
judicial bodies for their independent charge there could emerge three rival dictatorial
bodies. So, the new executive structure of exercising powers through reciprocal
control and check and balance is most appropriate.
The National Convention has already laid down
a basic principle in connection with separation and distribution of sovereign
State power that the three branches of State power, namely, legislative power,
executive power and judicial power are separated as much as possible and exert
reciprocal control, check and balance among themselves. Work Committee Chairman
U Aung Toe clarified that if Pyidaungsu (Union) Minister or Deputy Minister
appointed and assigned duties is a representative of any Hluttaw, it is deemed
he has resigned from the date he is appointed as Pyidaungsu Minister or Deputy
Minister. Separation as much as possible at the Union level is appropriate.
Separation and exercise of power through
reciprocal control and check and balance is like what philosopher Montesquieu
stated as "Power should be a check to power."
[Region/State governments]
There will be Region governments and State
governments in Myanma future administration. Chief Ministers will emerge as
heads of such governments. The Head of the Pyidaungsu Government or the
President will have to distribute and delegate executive powers to the
respective Chief Ministers of the regions and states. The Region and State
Chief Ministers too will be directly responsible to the President.
It is observed the principle stating that the
President shall select one suitable Hluttaw representative from among Hluttaw
representatives of the respective Regions or States and appoint them Chief
Ministers with the approval of the Region or State Hluttaws concerned is an
appropriate one.
The Region or State Chief Ministers are
representatives of the respective Region or State Hluttaws and heads of those
governments. They have to nominate Region or State Ministers and extend help in
nominating candidates for appointing the respective Region or State Chief
Judges and judges. As such duties are heavy, the President or the respective
Hluttaws will have to apply control and check and balance on the Chief
Ministers.
Tatmadaw servicemen are born of all strata of
people residing in Myanmar. They are prepared to sacrifice their life. Civil
servants too have rendered their physical and intellectual efforts.
Intellectuals and intelligentsia, lawyers and legal experts can serve the
interests of the country much depending on their abilities and skills.
Hence, the governments that will emerge
according to the constitution being written will certainly be people's
governments and democratic governments of justice and fairness towards the
people. Those included in the governments are expected to be good and able
persons of creativity.
As stated in the principle, "the Head of
the State is the President of the State", the President has the right to
choose persons he considers suitable and appoint them as Pyidaungsu Ministers
and Pyidaungsu Attorney-General. He is to scrutinize and appoint Ministers and
Advocates-General nominated by the Region or State Chief Minister for the
respective Region or State governments.
Since the President and the Chief Ministers
are mere human beings, questions may arise whether they will be able to
correctly choose and appoint Ministers, the Attorney-General and the Auditor-General
free from malpractices.
To avoid such instances, it has been laid
down in the basic principle that the President has no right to directly appoint
the Pyidaungsu Attorney-General from among the nominees out of his own free
will but he has to do so only after the approval of the Pyidaungsu Hluttaw.
It is also observed the principles to be
based in the executive structure as envisaged by the National Convention
Convening Work Committee conform to the flourishing of genuine multi-party
democracy system.
Moreover, they reflect the five [sic]
objectives of the National Convention.
Hence, some additions and suggestions of the
intellectuals and intelligentsia delegates group and the basic principles as
clarified by the Work Committee Chairman for the executive structure will
suitably be applied in the future Myanmar.
State Service personnel delegates group
U Maung Toe of State service personnel
delegates group said the head of State is the President; there will also be
vice-presidents to assist him; there will also be Union ministers to carry out
work; the setup of government is of a nature that is amenable to necessity in
performance of responsibilities.
He said the rule of law is most essential;
policies, works and decisions to be laid down by the President need to be
scrutinised and advice given to be in accord with law; so, to carry out this
duty, the Attorney-General of the Union needs to be included in the Union
government. With that the formation of the Union government will be adequate
and appropriate.
[Union ministers]
The President is to appoint Union ministers;
qualifications are prescribed for them; they must be at least 40 years old; the
must possess qualities required of Pyithu Hluttaw members; they must be loyal
to the State and the citizenry. The age stipulation of 40 is appropriate.
For appointing Union ministers the President
should seek the approval of the Pyidaungsu Hluttaw. The President should have
right to choose from among Hluttaw members as well as non-members so as to get
experienced and learned persons as Union ministers in the national interest.
The President is to get nominations from the Commander-in-Chief of the Defence
Services for appointment of Union ministers for defence, security, home affairs
and border affairs. The latter is to nominate persons who possess qualities
required for Union ministers.
It should be stipulated that Pyidaungsu
Hluttaw shall not have the right to turn down the nominations for Union
ministers unless it can show clear proof of any wanting in qualifications.
If the Pyidaungsu Hluttaw turns down any
nomination, the President should have the right to make the nominations anew
and seek the approval of the Pyidaungsu Hluttaw.
The President is to assign a ministry or
ministries to each of the Union ministers; if he deems it necessary to appoint
Tatmadaw members as Union ministers other than those for defence, security,
home affairs and border affairs he needs to have the right to coordination with
the Commander-in-Chief of the Defence Services.
It should be stipulated that Union ministers
have the responsibility to inform the Pyidaungsu Hluttaw, and that they shall
be responsible directly to the President of the State.
[Attorney-General]
The President should choose a qualified
person from among Hluttaw members or non-members and present the nomination to
the Pyidaungsu Hluttaw for approval for appointment as the Attorney-General of
the Union; this person must be experienced and at least 45 years old, must
possess the qualities required of Hluttaw members, must have served as Taya
Hluttaw Judge for at least five years, or must have served as judicial service
personnel or law service personnel at a post not lower than Region or State
level for at least ten years, or must have worked as an advocate for at least
20 years, or must be a person deemed by the President to be a legal expert of
high reputation; he must also be loyal to the State and the citizenry.
It should be stipulated that Pyidaungsu
Hluttaw shall not have the right to turn down the President's nomination for
Attorney-General unless it can show clear proof of any wanting in
qualification.
The Attorney-General of the Union should be
included in the Union government. He is to be directly responsible to the
President.
Just as there is right to impeach Union
ministers, there should also be right to impeach the Attorney-General for
breach of allegiance to the State, violation of the Constitution, moral
turpitude, or deterioration of qualifications required for the post.
Impeachment of the Attorney-General should be
in accord with the procedures for impeaching the President or Vice-President.
If the Hluttaw making or directing inquiry submits that the charges are proved
right and the person impeached should no longer continue to hold the post of
Attorney-General, the President is to terminate the services of the person as
Attorney-General. If the Hluttaw concerned decides that the charges are untrue,
the speaker of the house is to report that decision to the President.
Cmdr. Soe Thein (Navy)
[Auditor-General]
Cmdr. Soe Thein (Navy) of State Service
personnel delegates group said the President should choose a qualified person
from among Hluttaw members or non-members and present the nomination to the
Pyidaungsu Hluttaw for approval for appointment as the Auditor-General of the
Union; this person should be experienced and at least 45 years old, must
possess the qualities required of Hluttaw members, must have served as auditor
at a post not lower than Region or State for at least ten years, or must have
worked as registered accountant or certified public accountant for at least 20
years, or must be a person deemed by the President to be a statistician
("an accountant" should be added here) or an economist of high
reputation; he must also be loyal to the State and the citizenry.
It should be stipulated that Pyidaungsu
Hluttaw shall not have the right to turn down the President's nomination for
Auditor-General unless it can show clear proof of any wanting in qualification.
The Auditor-General is to be directly
responsible to the President.
The Auditor-General has to audit the accounts
of Union ministries. If the person is included in the government, the person
might be acting in the interests of the government with a view towards
protecting the image of the government; if he is independently responsible to
the President, he will be in a position to report weaknesses of Union
ministries without any bias or affiliation; so it must be taken that the
Auditor-General should not be included in the government.
The Auditor-General should have the same
status as Union ministers, as a person who has to audit receipts and
expenditures in the Union budget and submit report thereon, and also as a
person of prime importance in the Public Accounts Committee (PAC).
Just as there is right to impeach Union
ministers and the Attorney-General, there should also be right to impeach the
Auditor-General for breach of allegiance to the State, violation of the
Constitution, moral turpitude, or deterioration of qualifications required for
the post.
Impeachment of the Auditor-General should be
in accord with procedures for impeaching the President or the Vice-President.
If the Hluttaw making or directing inquiry submits that the charges are proved
right and the person impeached should no longer continue to hold the post of
Auditor-General, the President is to terminate the services of the person as
Auditor-General. If the Hluttaw concerned decides that the charges are untrue,
the speaker of the house is to report that decision to the President.
As the Auditor-General and Deputy
Auditor-General are persons to serve the interests of the Union and the people,
there should be provision that, if they belong to any political party, they are
prohibited from undertaking any party work of their party organization during
their term of office. Their rights and duties should be prescribed by law.
[Public Service Commission]
In practising genuine multi-party democracy
in the country, parties with most votes can form governments and there can be
changes of government after, or even during, a term of Hluttaw; yet State
machinery has to run without interruption to ensure safety of life and property
of the people; State service personnel need to be highly efficient; to have
highly efficient services personnel and to ensure uniformity in their
recruitment and training, the work should be entrusted to the Public Service
Commission. It has been recommended that a public service commission be formed
with five to nine members including the chairman. He said the number of members
of the commission should not be fixed in the Constitution but prescribed by law
so that it can be changed with ease if necessary later. So formation of a
public service commission should be included in Para (6); Para (2) is no longer
necessary; Hluttaw should be substituted with Pyithu Hluttaw in Clarification
Para (3) Sub-Para (Khagwe); it should be mentioned that the public service
commission chairman shall be responsible to the President and public service
commission members shall be responsible to the commission chairman and, through
him, to the President.
[Region/State government]
Persons with necessary and suitable
qualifications should be chosen for appointment as Chief Minister or ministers
of Region or State. It is appropriate to fix the lower age limit as 35 years;
they must also be loyal to the State and the citizenry; they must also have
qualities required of Region or State Hluttaw members except for age.
Self-administered division or zone chairmen
are to be ex-officio Region or State ministers; Region or State Hluttaw members
elected to take charge of national race affairs in the Region or State, too,
are to be Region or State ministers; for these persons, it may be necessary to
relax the age stipulation of 35 years; it will be necessary to provide for
that.
The President should choose a suitable and
qualified person from among Region or State Hluttaw members to be the chief
minister of Region or State; it should be laid down that there is no right to
choose from among others who are not members of State or Region Hluttaw; the
nomination of a person so chosen should be presented to the Region or State
Hluttaw for approval; it should be laid down that the Region or State Hluttaw
has no right to turn down the President's nomination for the chief minister's
post unless it can show clear proof of any wanting in qualification of the
nominee for the post.
The status of the chief minister should be
prescribed not too low or not too high; the basic spirit needed is to play
whatever role one is required to play in the cause for emergence of a peaceful
and developed State in future; the status of the Region or State chief minister
should be the same as the Union minister; both are similarly charged with
tactical implementation of strategic objective of emergence of a peaceful and
developed State as laid down by the President and the Vice-President and so
they should be of equal status. (NLM 12/8)
U Kyi Aye
U Kyi Aye went on to submit the proposal
paper of the State service personnel delegate group.
Regarding appointment of region or state
Ministers and assignment of duties to them, he stressed efficiency and
qualifications. He suggested that the region or state ministers be selected
from among Hluttaw representatives or non-Hluttaw representatives, saying by
doing so, there will be effectiveness in administration. He suggested that the
region or state Chief Minister select the minister of his own will from among
Hluttaw representatives or non-Hluttaw representatives.
Concerning defence and border affairs, he
said Tatmadaw servicemen who are more proficient in these matters be assigned
duties and to be able to assign duties thus, names of Tatmadaw servicemen are
to be asked from the Commander-in-Chief of the Defence Services.
The region or state Chief Minister, he said,
is to compile names of persons selected of his own will and names of Tatmadaw
servicemen nominated by the Commander-in-Chief of the Defence Services in a
list which is to be submitted to the respective region or state Hluttaw for
obtaining approval. It should be prescribed that the region or state Hluttaw
shall not have the right to reject the region or state Chief Minister's
nominations for appointment as ministers, unless it can show clear proof of
want of qualifications prescribed for region or state Ministers. He commented
that by so doing there will be harmony and balance between the rights of the
respective Chief Minister and the Hluttaw.
He said that if the region or state Chief
Minister wishes to assign other duties to Tatmadaw servicemen in addition to
security and border affairs as region or state Minister, he should do so after
coordination with the Commander-in-Chief of the Defence Services, and only then
would there be effectiveness of functions and reciprocal check, control and
balance between the Commander-in-Chief of the Defence Services who takes
responsibility for the Tatmadaw servicemen and the respective Hluttaw.
U Khin Maung Myint
U Khin Maung Myint went on to submit the proposal
paper of the State service personnel delegate group.
He cited an extract from the National
Convention Convening Work Committee Chairman's address delivered on 2-9-94, 'I
have clarified participation of the Tatmadaw servicemen representatives,
one-fourth of the total Hluttaw representatives, in the legislation sector. So,
one-fourth of the total members of the self-administered division leading body
(Oo-zi Aphwe) or self-administered zone leading body (Oo-zi Aphwe) should be
Tatmadaw servicemen representatives'.
In the clarification, he said, it was said
members of the self-administered division or self-administered zone leading
body should possess qualifications prescribed for the region or state Hluttaw
representatives and Tatmadaw servicemen leading body members should also
possess qualifications prescribed thus.
He said it should be provided 'Tatmadaw
servicemen nominated in accordance with law by the Commander-in-Chief of
Defence Services to be assigned duties as members of the self-administered division
or self-administered zone leading body shall possess qualifications prescribed
for region or state Hluttaw representatives'.
[Union territories]
Regarding the formation of the Yangon City
Council, he said, the chairman and members of the Council are to be appointed
and assigned duties and their qualifications should be prescribed.
He stressed experience for members of the
Yangon City Council and said the Council member's age should be prescribed as
at least 35 years to be able to manage multifarious duties of the council. He
said a fundamental principle should be laid down that 'the Council member shall
possess qualifications prescribed for Hluttaw representatives except the age
limit' and also that 'the person to be appointed Yangon City Council member
shall be subject to provisions denying rights to stand for election to the
Hluttaw'. It would be thorough to prescribe that the Council member shall also
possess qualifications designated by the President of the State.
He said that a fundamental principle has been
laid down to the effect that Yangon City and Cocogyun Township are designated
as Union territories and are placed under direct administration of the
President of the State and in accordance with the principle, Yangon City and
Cocogyun Township will become Union territories under direct administration of
the President of the State when the new Constitution emerges. As it has been
stated that administrator of Cocogyun Township is responsible to the President
of the State or to the person assigned by the President of the State, it is
found that the President has the authority to assign duties to a person, he
said.
He expressed belief that the President is in
a position to assign duties to the Yangon City Council for security,
administration, economy and social affairs of Cocogyun Township. So, he
proposed that regarding administration of Cocogyun Township, which is the Union
territory, administrative responsibilities be assigned to the Yangon City
Council without separately appointing a person as the administrator.
[Local government; appointed, not elected]
Regarding administrative matters of district,
he commented township and ward and village-tract levels are to implement
policies laid down by the government in accordance with laws. So, he said,
persons taking responsibilities at these levels must be able to cause
continuous operation of work without delays or cessations and only then would
the nation achieve modernity and development. Persons assuming duties at the
levels must have functional experience and skill, contacts between themselves
and understand policies and directives laid down by the higher authorities, and
they are to give decisions in time on imperative matters. He spoke of formerly
assigning duties to personnel or elected organs in the levels and pointed out
that there had been delays in discharging duties when there were occasions
lacking full presence of members in a system of collective undertaking as an
organization.
He said when elected organs were assigned
administrative duties, it usually happened that their term expired when they
had become familiar with respective laws, rules and discipline, and old members
might or might not [be] included in the new term. He said there were delays for
the people to be able to enjoy their rights as new members took time studying
laws, rules and discipline during their tenure.
In this country, which is practising
multiparty democracy system, there will be persons from various parties when
bodies to deal with administrative affairs are formed, he said and spoke of
possibility of cessation of implementation of work at district, township and
ward/village-tract levels due to different opinions on the matters.
He spoke of competitions and canvassing in
the past by various means in electing regional authorities for respective
districts, townships, wards and village-tracts and dissentions and conflicts.
He reminded that such cases may harm national unity and undermine rule of law
and peace and tranquillity.
In electing persons who will provide leading
role in wards and village, there can be party politics and attempts of various
parties to bring about election of the person who supports their parties, he
said. If such a person is elected, he will probably employ various means and
use his influence for the party he supports to win in the general elections.
So, he said such weaknesses in the past should be avoided for the posterity.
He said heads of ward or village-tracts are
persons closely in touch with people and if a person of integrity, who is
respected by the majority, is appointed head of the respective ward or
village-tract, people will accept his leadership with satisfaction and it will
further strengthen unity of ward or village residents.
So, he suggested that a person of integrity,
who is respected by majority, should be appointed in accordance with law as
head of ward or village-tract, as accepted formerly in various regions, instead
of appointing him by election.
He said that township and ward and
village-tract levels are to implement policies and directives laid down by the
central, region or state levels in conformity with law, procedures and within
the framework of policy and they must have experience, efficiency and being
able to carry out duties in time every day. He remarked that the State and the
people will enjoy benefits in the long-term if these duties are carried by
personnel and persons assigned.
So he suggested a fundamental principle
should be laid down that district and township-level administrative duties are
to be carried out by State service personnel to be appointed and ward and
village-tract-level administrative duties are to be carried out by appointing a
person of integrity, respected by the majority.
He said the State service personnel delegate
group put forward the proposals based on the chief and crucial objective of the
National Convention for bringing about welfare of the State and the nationals
as best as possible. (NLM 12/9)
Dec. 8: The Plenary Session of the National
Convention continued, with 525 of 590 delegates present. Proposal papers on the
Executive were read by delegates from the Other Invited Persons group (second
and third parts) and from three delegates from the Political Parties delegates
group.
[Other invited persons group]
U Saw Hla Tun
U Saw Hla Tun of Chaung-U Township of other
invited persons group said basic principles should be laid down as follows:
1. The executive head of the State is the
President of the State;
2. (a) The executive power of the State is
distributed among the Union, Regions and States;
(b) Self-administered powers are delegated to
self-administered areas as prescribed by the Constitution.
3. The Union government shall be set up with
the following persons:
(a) President of the State
(b) Vice-Presidents
(c) Union Ministers
(d) Attorney-General of the Union
4. The President of the State may
(a) prescribe Union ministries as necessary,
make changes or additions thereto;
(b) prescribe the number of Union ministers as
necessary, and increase or decrease the number;
5. Union ministers must possess the following
qualifications:
(a) they must be at least fully 40 years of
age;
(b) they must have qualifications prescribed
for Pyithu Hluttaw members except the qualification of age;
(c) they must be loyal to the State and the
citizenry.
The following principles should be laid down
to appoint Union ministers:
1. The President shall
(a) choose suitable and qualified persons
from among Hluttaw members as well as non-members for appointment as Union
ministers;
(b) get nominations from the
Commander-in-Chief of the Defence Services for appointment of Union ministers
for defence, security, home affairs and border affairs.
2. The President is to present these
nominations to the Pyidaungsu Hluttaw for approval.
3. Pyidaungsu Hluttaw shall not have the
right to turn down the nominations for Union ministers unless it can show clear
proof of any wanting in qualifications.
4. If the Pyidaungsu Hluttaw turns down any
nomination, the President should have the right to make nominations anew and
seek the approval of the Pyidaungsu Hluttaw.
5. The President is to appoint approved
nominees as Union ministers and assign a ministry or ministries to each of the
Union ministers.
6. If the President deems it necessary to
appoint Tatmadaw members as Union ministers other than those for defence,
security, home affairs and border affairs he shall proceed in coordination with
the Commander-in-Chief of the Defence Services.
7. The President shall report to the
Pyidaungsu Hluttaw every time it [sic] makes an appointment of Union ministers.
8. The Union ministers shall be directly
responsible to the President.
It is necessary for the President to choose a
suitable and qualified person for appointment as Attorney-General; there should
also be right to impeach the Attorney-General for breach of allegiance to the
State, violation of the Constitution, moral turpitude, or deterioration of qualifications
for the post.
It is necessary for the President to choose a
suitable and qualified person for appointment as Auditor-General; there should
also be right to impeach the Auditor-General for breach of allegiance to the
State, violation of the Constitution, moral turpitude, or deterioration of
qualifications for the post.
It is also necessary for the President to
have the right to choose a suitable and qualified person from among Hluttaw
members or non-members and appoint the Deputy Auditor-General.
For raising efficiency of services personnel
and ensure uniformity in recruitment and training, there should be a central
body; it should be the Union Civil Service Board; the President should choose
qualified and suitable persons as its chairman and members and form the board;
detailed principles should be laid down to stipulate the number of members,
qualifications, including that of being free from party politics, age
stipulation etc.
[Region/State government]
The following principles should be laid down:
1. Region government shall be formed in
Region; State government shall be formed in State;
2. Region or State government shall be formed
with the following:
(a) Chief Minister of Region or State;
(b) Ministers of Region or State;
(c) Advocate-General of Region or State.
3. The President of the State may
(a) prescribe Region or State ministries as
necessary, make changes or additions thereto;
(b) prescribe the number of Region or State
ministers as necessary, and increase or decrease the number.
4. Region or State ministers must possess the
following qualifications:
(a) they must be at least fully 35 years of
age;
(b) they must have qualifications prescribed
for Region or State Hluttaw members except the qualification of age;
(c) they must be loyal to the State and the
citizenry.
5. To appoint as chief minister of Region or
State, the President of the State shall
(a) choose a qualified and suitable one from
among Region or State Hluttaw members;
(b) present the nomination to the Region or
State Hluttaw.
6. The President of the State shall appoint
the Region or State Hluttaw member approved by the Region or State Hluttaw as
the chief minister of Region or State.
7. Region or State Hluttaw shall have no
right to turn down anyone in the nomination of the President of the Union if it
cannot show clear proof of any wanting in qualifications.
Chief minister of Region or State should have
right to choose a qualified and suitable person and present nomination to
Region or State Hluttaw for appointment as chief auditor of Region or State;
detailed principles should be laid down on age stipulation, qualifications,
required experience of service, requirement of loyalty, appointment by the
President of the State, responsibility, impeachment, replacement, retirement
from service.
[Union territory]
Yangon being the capital of the State is to
be prescribed as Union territory; all districts and townships in the city
development area on the day the Constitution comes into force should be
included in Yangon the Union territory. The President should have right to make
changes as necessary as regards districts and townships in Yangon.
Principles should be laid down for formation
of Yangon City Council, appointment of a chairman, prescribing qualifications
of councillors, getting nominations of Tatmadaw members and appointing
councillors, holding council chairman and councillors directly responsible to
the President, and on matters of termination from duties, resignation,
replacements, functioning as Yangon City Council secretary, designating the
office of Yangon City Council etc.
Dr. Chan Tha (a) U Nyi Nyi
Dr. Chan Tha (a) U Nyi Nyi of Maungtaw
Township, National Convention delegate of other invited persons group,
submitted the remaining part of the proposal paper compiled by the group.
He said a fundamental principle 'Cocogyun
Township which has special situation is designated a Union territory and placed
under direct administration of the President has been laid down.
He suggested a township administrator be
appointed to exercise administrative power for Cocogyun Township, a Union
territory, and the President should select of his own will a person possessing
qualifications prescribed for Hluttaw representatives to appoint him Cocogyun Township
Administrator, adding fundamental principles in connection with resignation,
removal from office, filling the vacant post and assigning duties and
designation of the Administrator's Office should also be laid down.
[Region/State government]
He submitted a proposal that concerning
regional administration, the District Administrator and the Township
Administrators, who are of the personnel organization, be continuously charged
with administrative duties at district or township levels.
At district level, Tatmadaw servicemen
assigned by the Commander-in-Chief of Defence Services should be permitted to
participate together with the District Administrator in the affairs of
security, rule of law and community peace and tranquillity, he said.
He said the ward and village-tract are levels
which have direct contact with the people in administration and so ward or
village-tract administrators elected by the people should be assigned duties,
adding election of ward/village-tract administrators, prescribing of functions
and duties and granting of rights and privileges should be provided by
enactment of a separate law.
He said proposals obtained after thorough
discussion of the invited persons group on the chapter the Executive to be
included in writing the State Constitution had been submitted and went on to
submit significant proposals and suggestions of some delegates in the group.
[Shan State (North) Special Region 7]
He submitted proposals submitted by leader of
Shan State (North) Special Region 7 as follows:
(1) In connection with the formation of the
Pyidaungsu (Union) government,
(a) the President shall designate the Union
government ministries, make changes in and additions to the designated
ministries, allocate the number of Union ministers and increase or decrease the
allocated number after obtaining approval from the Union Hluttaw;
(b) Tatmadaw servicemen nominated by the
Commander-in-Chief of Defence Services to be appointed Union ministers shall
possess qualifications prescribed for Union ministers.
(2) In connection with the removal from
office of Union Ministers and Deputy Ministers,
-- the President shall have the right to
order the resignation of the Union Minister or Deputy Minister appointed by
himself or the Union Minister or Deputy Minister, who is the Tatmadaw
serviceman nominated by the Commander-in-Chief of Defence Services, if he has
failed to discharge his duties and can remove him from office if he fails to
comply with the order.
(3) In connection with the formation of
region or state government,
-- the President shall designate the region
or state ministries, make changes in and additions to the designated
ministries, allocate the number of region or state ministers, appoint region or
state ministers and increase or reduce the allocated number after obtaining
approval from the respective region or state Hluttaw.
(4) In connection with the formation of the
self-administered division or self-administered zone leading body (Oo-zi
Aphwe),
-- the secretary of the self-administered
division or self-administered zone leading body shall be selected from among
those in the respective self-administered division or self-administered zone
leading body.
[U Ko]
He submitted proposals submitted by delegate
U Ko of the other invited persons group as follows:
[Interim procedures]
(1) In connection with terms of office,
resignation, removal from office and filling vacant posts of Union Ministers
and Deputy Ministers,
(a) the President who appointed Union
Ministers and Deputy Ministers shall order them to continue to discharge their
duties until the new Union Ministers and Deputy ministers have been appointed
and assigned duties by the new President elected when the post of President has
fallen vacant due to resignation, death or any reason before the expiry of the
term of office;
(b) the term of office of the new Union
Ministers and Deputy Ministers appointed to fill vacant posts shall be up to
the end of the remaining period of the term of office of the new President.
-- In connection with appointment of and assigning
duties to region or state ministers,
(a) the region or state Chief Minister shall
appoint ministers according to the number of region or state Ministers
stipulated by the President;
(b) the President who appointed region or
state Chief Minister and Ministers shall order them to continue to discharge
their duties until the new region or state Chief Minister and Ministers have
been appointed and assigned duties by the new President elected when the post
of President has fallen vacant due to resignation or death before the expiry of
the term of office;
(c) the term of office of the new region or
state Chief Minister and Ministers shall be up to the end of the remaining
period of the term of office of the new President.
[Supervision of local officials]
-- as departmental personnel are to undertake
and implement departmental tasks in districts and townships, the respective
district administrators and township administrators should make integration,
coordination, supervision and control for the success of departmental tasks.
District and township levels are just to implement plans and projects.
Respective organization at the central and division and region levels are to
conduct discussions and make decisions. It is assumed that it is not necessary
to proceed with organizations including council or committee members at
district and township levels which will implement tasks approved by the
organizations. The President should improvise other suitable means in addition
to practising a system of supervision at different levels to prevent corrupt
practices among personnel, strictly adhering to the reward-and-punishment
system and controlling by laws, rules and directives. It is proposed that an
organization be formed with the inclusion of suitable citizens to be able to
steer and supervise personnel for prevention of corrupt practices.
[U Saw Tun Sein]
He submitted proposals submitted by delegate
U Saw Tun Sein of the other invited persons group as follows:
(1) In connection with the formation of Union
Civil Service Board,
(a) when the Law of Union Civil Service Board
is written, it is to be provided that the board shall select personnel mainly
based on 'merit ration'. If there is differentiation in selecting on the basis
of race, religion etc., the State will lose labour of intellectuals and
intelligentsia necessary for the nation. Emphasis should be laid on patriotism
and loyalty to the State.
(2) In connection with the administration of
Union territory,
-- it should be considered whether a
fundamental principle should be laid down that Union territory shall be
designated in the regions, states and self-administered areas and placed under
direct administration of the President if it is so required.
[Kachin State Special Region 1]
He submitted proposals submitted by Kachin
State Special Region 1 as follows:
[Participation of peace groups]
-- In connection with the formation of region
or state government,
(1) whether it is appropriate to practise the
means of selection and nomination by the Commander-in-Chief of Defence Services
for the chairmen of peace groups in the special regions to be able to
participate in the administrative bodies of the respective region or state, or
to practise any other suitable means for their participation;
(2) peace groups or representatives of
special regions that have emerged in the period of the State Law and Order
Restoration Council or the Tatmadaw Government should be permitted in the
respective region or state administrative bodies;
(3) it will be proper to permit, with a view
to bringing about development of regions or states, region or state
administrative body to establish foreign relations to some extent if they are
not against the policy of the Union government and against the Constitution;
(4) in connection with personnel affairs of
the region or state government, priority is to be given to residents in the
respective region or state in appointing personnel of self-administered area,
region or state governments. For some work establishments, prescribed
qualifications should be relaxed in appointing the personnel.
[U Pe Kin]
He then presented significant points of U Pe
Kin, a delegate of the other invited persons delegate group as follows:
[Advocate-General title]
-- In connection with appointment of the
Region or State Advocate-General and assigning duties --
-- The set-up of the region and state
government is found to be the same as that of the Union government. Ministers
are called "Wun-gyi" as in the case of members of the Union
government. Similarly, accounts officer, a member of the state government, is
also called Auditor-General, the same as the Union. It has been suggested,
however, to call Shaynay-chok (Attorney-General) as U-paday-chok
(Advocate-General). The meaning of this term is believed to be incomplete. It
is like calling the Tayathugyi-chok (Chief of the High Court) as Taya-chok.
Hence, Advocates-General of the regions and states should be called
"Shaynay-chok" or "U-paday-ayashi-chok" instead of
"U-paday-chok".
[Shan State Special Area-1]
He next presented significant points of the
leader of Shan State Special Area-1 as follows:
[Self-administered areas]
-- In connection with formulation of the
self-administered region [sic] or self-administered zone Oo-zi Aphwe (leading
body),
(1) self-administered division leading body
should be constituted with 11 members or nine members,
(2) self-administered zone leading body
should be constituted with seven members or five members,
(3) chairman of the self-administered
division or self-administered zone must be a national of the respective
region's or state's national race,
(4) the leading body of a self-administered
area shall elect its secretary from among themselves,
(5) the self-administered area leading bodies
shall be constituted as follows:
(a) representatives of the respective
region's or state's national race (including those of national races with
moderate size of population) -- 60 per cent,
(b) service personnel representatives -- 20
per cent, and
(c) Tatmadaw servicemen representatives -- 20
per cent.
[Northern Shan State Special Area-2]
He next presented significant points of the
leader of the Northern Shan State Special Area-2 as follows:
[Tatmadaw representatives to be elected]
-- We accept the national political leadership
role to be played by the Tatmadaw in future Myanmar, after and overall study of
the historical developments of the Union, aspirations of the people, the
traditions of the Tatmadaw and current internal and external situation. We
support it. Hence, at different levels of executive bodies Tatmadaw servicemen
representatives should not be appointed and assigned duties but be elected and
assigned duties to obtain the required number.
He noted significant points of some of the
delegates of the other invited persons group are those to be considered to
include in the structure of the executive.
The proposals just submitted were the basic
principles obtained after discussion 20 proposal papers of the other invited
persons delegate group for 12 times between 10 October 1994 and 20 January
1995. The basic principles for the structure of the executive are to be
considered to lay down as basic principles in writing the constitution. (NLM
12/9)
Union Pa-O National Organization
U Aung Khin, delegate of the Union Pa-O
National Organization, submitted the party's proposal paper on the structure of
the chapter "The Executive" to the plenary session of the National
Convention. He said:
The Executive of the State should be
constituted with the President, Vice-Presidents, Union Ministers and Union
Attorney-General included in the Pyidaungsu (Union) government. In the Union
Government the Head of the Executive is the President. The executive power of
the State is to be distributed and delegated to the regions and states. Executive
powers will have to be distributed and delegated to the self-administered areas
in accord with the constitution.
The rights should be prescribed for the Head
of the Executive or the President to designate the Union Government ministerial
portfolios, make necessary amendments and additions, prescribe for number of
ministers, increase or decrease the number of ministerial portfolios and so
forth. It is suggested basic principles should be laid down to prescribe
qualifications for the Union Ministers.
[Attorney-General]
The President should select a suitable person
having prescribed qualifications to appoint him Pyidaungsu Attorney-General to
get legal advice and assign duties of legal character. The Pyidaungsu
Attorney-General would then be able to take care of questions of legal
character, if any, on behalf of the President.
The Pyidaungsu Attorney-General would have to
be a member of the Pyidaungsu Government and at the same time he would have to
be directly responsible to the President. So, basic principles should be laid
down providing that the Pyidaungsu Hluttaw should not have the right to reject
the person nominated by the President to be appointed Pyidaungsu
Attorney-General unless it could prove clearly that he is not qualified for
being Pyidaungsu Attorney-General.
The Pyidaungsu Attorney-General should be
subject to impeachment and punishment as in the case of Pyidaungsu Ministers.
Then only would the Pyidaungsu Attorney-General be in a better position to have
good conduct and loyalty. So, the Pyidaungsu Attorney-General should be subject
to impeachment for treason, violation of provisions of the Constitution,
misconduct or being disqualified to the post of Pyidaungsu Attorney-General
under the Constitution.
[Auditor-General]
In connection with appointment of Pyidaungsu
Auditor-General and assigning duties he said the President should select a
suitable person having prescribed qualifications to appoint him Pyidaungsu
Auditor-General to audit budget accounts of the government departments and submit
them to the respective Hluttaws. Then only would the general conditions in the
country be appraised from the aspect of accounts. Detailed principles should
also be laid down in connection with the qualifications of the Pyidaungsu
Auditor-General.
[Civil Service Board]
Regarding the Union Civil Service Board, he
said the role of service personnel is very important. They should be
systematically selected and properly trained to raise efficiency. It should be
provided in the Constitution to form the Union Civil Service Board to manage
the affairs of the service personnel.
[Region/State government]
The constitution that would emerge being a
Pyidaungsu (Union) system and structure, there would be region and state
governments. So, the region and state governments should be formed and chief
ministers should also be appointed to lead those governments. So, necessary
basic principles should be laid down for the appointment of region or state
chief ministers and assignment of duties.
Relevant basic principles should be laid down
for the appointment of region or state ministers and assignment of duties so
that they would be able to manage administrative affairs as the region or state
government members under the leadership of the respective region or state chief
ministers.
The President of the State should have the
right to assign the self-administered division chairmen, self-administered zone
chairmen and national race affairs ministers other duties jointly. Similarly,
when security and border affairs are to be assigned nominations should be
coordinated with the Defence Services Commander-in-Chief and submitted to the
President with the approval of the respective regions or states.
The President's appointment of the region or
state chief ministers and ministers and assignment of duties should be notified
to the respective region or state Hluttaws or the Pyidaungsu Hluttaw. The
region or state chief ministers should be directly responsible to the President
of the State and similarly the region or state ministers should be responsible
to the President of the State through the region or state chief ministers.
Basic principles should be laid down prescribing that the term of office of the
region or state chief ministers and ministers should be the same as that of the
President of the State.
Detailed principles should be laid down in
connection with election of the self-administered division chairmen and
self-administered zone chairmen, duties assigned to them, their being chief
ministers of the respective regions or states [sic], the set-up of
self-administered division leading bodies or self-administered zone leading
bodies, election of representatives in areas where the number of population
exceeds 10,000, assigning duties to the Tatmadaw servicemen representatives who
constitute one-fourth in the leading body, prescribing, through promulgation of
law, of duties, rights and privileges of the self-administered region [sic] or
self-administered zone chairmen and leading bodies, assigning duties as
secretaries of the self-administered regions [sic] or self-administered zones
and designation of the leading body offices.
[Union territories]
Concerning the capital of the State, it has
been laid down that Yangon, the capital of the State, is placed under direct
administrative control of the President of the State and designated as a
Pyidaungsu territory. Basic principles should be laid down in connection with
administration of Yangon, the Pyidaungsu territory. The eleven basic principles
clarified by the National Convention Convening Work Committee are complete and
they should be laid down as basic principles.
[Local government]
In connection with regional administration,
he said, district and township executive officers should be made to
continuously manage district and township level administrative affairs.
Tatmadaw servicemen assigned by the Defence Services Commander-in-Chief would
have to carry out duties at the district level.
Ward and village level administration has to
deal most with the public. Hence, war or village administrative personnel
should be elected and assigned duties. In conclusion, it is suggested that a
specific law should be promulgated in connection with election, assignment of
duties and rights of the war or village-tract administrative personnel.
Shan State Kokang Democratic Party
U Ti Daung Wai, National Convention delegate
of Shan State Kokang Democratic Party, submitted a proposal paper on the
formation of the chapter the Executive to be included in writing the State
Constitution.
He spoke of convergence of views between the
delegates of the party and other delegates in submitting suggestions and
proposals and said that however, they would seek answers over differing points
through discussions conducted with tolerance, goodwill and patience.
In so discussing, he said, it is to be
directed in democratic spirit towards a National Convention objective
'flourishing of a multiparty democracy system in future State' and only then
would correct answer be found for the delegates and the nationals and only then
would a Constitution with democratic aspects and rich in democratic essence
emerge.
In so doing, it would amount to demonstrating
that the delegates are actually discharging the great duty in accordance with
the Tatmadaw Government's motto 'emergence of the State Constitution is the
concern of all nationals', he explained.
As Shan State Kokang Democratic Party
believes that all the delegates would put forward constructive suggestions, the
political parties would uphold their prestige by making suggestions which would
benefit the entire Union.
He expressed belief that if discussions are
made with a norm set on the motto 'the executive system of the State must be
democracy administrative system', different administrative levels of the
Government of the Union of Myanmar will emerge rich in democracy essence. He
suggested that different levels of the Union Government be formed based on the
following fundamental principles:
(1) The executive power of the State is
distributed among the Union member states and regions;
(2) Executive power shall be distributed to
self-administered zones and self-administered divisions as stipulated by the
State Constitution.
He said different levels of the government of
the future Union of Myanmar can be formed as follows:
1. the Union Government
2. the state and division [sic] governments
3. executive committees of self-administered
zones and self-administered divisions.
Concerning the Head of State or the President
of the State, he spoke of compilation of the list of presidential candidates,
selection and appointment of the President by Pyidaungsu Hluttaw
representatives, taking oath of office of the President before the Pyidaungsu
Hluttaw representatives, impeachment of and removal from office of the
President, appointment of Union Ministers after obtaining approval from
Pyidaungsu Hluttaw and intimation to the Pyidaungsu Hluttaw of having appointed
Ministers. He said just as the Pyidaungsu Hluttaw is responsible to the nationals,
so also is the President responsible to the Pyidaungsu Hluttaw. He spoke of
prestige and honour which the President must have in administration or in
foreign affairs and said the President is a crucially important person for
solving cases of emergency in the State.
Concerning Prime Minister of the Union, he
said the Prime Minister should be vested with full administrative power and is
to lead ministers in managing the affairs of the State in democratic manner. As
the President is responsible to Pyidaungsu Hluttaw, the government led by the
Prime Minister is responsible to the President.
He said Deputy Prime Minister and Ministers
are to support the Prime Minister while discharging their duties and they must
also be people's representatives.
Deputy Ministers are to support Ministers and
they must be elected people's representatives, he said.
[Attorney-General and Auditor-General should
be independent of Government]
He spoke of the position of Attorney-General
who is to give legal advice to the State and various levels of the government
sand said he must be impartial, loyal to the State and people and perform his
duties in accordance with the noblest and worthiest of the worldly values. He
commented that so, the Union Attorney-General should not be included in the
Union Government and what is needed for him is to be responsible to Pyidaungsu
Hluttaw and to carry out his duties faithfully.
He said Union Auditor-General is needed to
audit receipts and expenditures and other accounts of public economic
organizations and departments and the governmental organizations and he should
not also be member of the Union Government. He is to be responsible to
Pyidaungsu Hluttaw and carry out his duties faithfully.
[Region/State government]
He suggested State or Region Hluttaws be
formed with people's representatives elected from the respective State or
Region and governmental organizations will emerge from the Region or State
Hluttaws. He said members of State or Region governmental organizations must be
people's representatives, proposing Region or State governments be formed with
the inclusion of persons as follows:
1. Region or State Chairman
2. Region or State Vice-Chairman
3. Region or State Ministers
4. Region or State Deputy Ministers
Virtual flourishing of democratic
administration in self-administered areas will help counter, with the strength
of the people, threats and interferences from outside, he said and noted that
the democracy administration system is needed for emergence of existing
people's strength as it is believed 'the strength of the nation lies within'.
He said it is only democracy [sic] means that will help bring about modernity
and development in border and self-administered areas.
Mro (or) Khami National Solidarity
Organization
U Maung Pain (a) U Khin Maung Thein of Mro
(or) Khami National Solidarity Organization said the following principles are
appropriate:
1. the executive head of the State is the
President of the State;
2. (a) The executive power of the State is
distributed among the Union, Regions and States;
(b) Self-administration powers are delegated
to self-administered areas as prescribed by the Constitution;
3. The Union government shall be set up with
the following persons:
(a) President of the State
(b) Vice-Presidents
(c) Union Ministers
(d) Attorney-General of the Union
4. The President of the State may
(a) prescribe Union ministries as necessary,
make changes or additions thereto;
(b) prescribe the number of Union ministers
as necessary, and increase or decrease the number;
5. Union ministers must possess the following
qualifications:
(a) they must be at least fully 40 years of
age;
(b) they must have qualifications prescribed
for Pyithu Hluttaw members except the qualification of age;
(c) the must be loyal to the State and the
citizenry.
So also are the following principles:
1. Region government shall be formed in
Region; State government shall be formed in State;
2. Region or State government shall be formed
with the following:
(a) Chief Minister of Region or State;
(b) Ministers of Region or State;
(c) Advocate-General of Region or State.
3. The President of the State may
(a) prescribe Region or State ministries as
necessary, make changes or additions thereto;
(b) prescribe the number of Region or State
ministers as necessary, and increase or decrease the number;
4. Region or State chief ministers and
ministers must possess the following qualifications:
(a) they must be at least fully 30 years of
age
(b) they must have qualifications prescribed
for Region or State Hluttaw members except for age;
(c) they must be loyal to the State and the
citizenry.
It will be necessary to ensure maximum
possible fairness in considering the right of participation of national race
representatives in the Amyotha Hluttaw.
The national brethren in the Union need to
have equal fundamental rights. They have always remained close together
particularly in times of crises. At present all are coming together for
preparing to write an enduring Constitution to serve the interests of all the
national people, for perpetuity of the Union, non-disintegration of national
solidarity and perpetuation of sovereignty, for greater prosperity of the
Union. It is not known when a time like this will come again. So, in the
Constitution we are writing today, some firm principles should be prescribed
explicitly for the national races in the majority as well as for the national
races in the minority.
[Self-administered areas]
It should be laid down as a principle that
self-administered division or self-administered zone Oozi Aphwe should be
formed as follows:
(1) to be formed with people's
representatives elected by the people, as chairman, secretary and members;
(2) self-administered division or
self-administered zone shall have legislative power as bestowed by the Constitution;
(3) to include minority national races in
self-administered division or self-administered zone as much as possible; not
to proceed on the basis of a limit in population.
In conclusion he said he had presented his
organization's sincere proposals, giving suggestions for the said points and
had no more to say about the remaining matters. (NLM 12/10)
Dec. 11: The Plenary Session of the National
Convention continued, with 522 of 590 delegates present. Further proposal
papers on the Executive were presented by members of the Political Parties
delegates group [full texts]:
Lahu National Development Party
U Kya Shi, delegation of the Lahu National
Development Party, submitted the party's proposal paper on the structure of the
chapter "the Executive" to the plenary session of the National
Convention.
He said in discussing the structure of
"The Executive" the party would not deal with the clarifications of
the Work Committee Chairman but the remaining points. He asked for forgiveness
if there are any unsmoothness or mistakes in the use of language.
[Prime Minister]
He said the party believes instead of
managing the executive matters directly by the President of the State who is
Head of State, it would be more proper for the Prime Minister to do so and at the
same time the President would be in a more prestigious position.
When the Pyidaungsu Hluttaw is to impeach and
dismiss the government, it can dismiss the Prime Minister and Ministers only;
it can again elect the new Prime Minister to work with the President and
Ministers. It would then be beneficial to the country.
In connection with the appointment of
Pyidaungsu Government Ministers and assignment of duties, basic principles
should be laid down as follows:
(1) the President of the State shall, in
consultation with the Pyidaungsu Government Prime Minister, appoint members of
the Pyidaungsu Government Pyidaungsu Minister [sic] and assign duties,
(2) the President shall nominate suitable
persons from among the Pyidaungsu Hluttaw representatives having the prescribed
qualifications,
(3) the President, in consultation with the
Pyidaungsu Government Prime Minister, shall submit the nominations to the
Pyidaungsu Hluttaw and seek its approval,
(4) the President shall again submit nominations
made as in the case of paragraph (2) for those who have not been approved by
the Pyidaungsu Hluttaw and seek its approval,
(5) the President, in consultation with the
Pyidaungsu Government Prime Minister, shall appoint Pyidaungsu Hluttaw
representatives approved by the Pyidaungsu Hluttaw as Pyidaungsu Government
Ministers and assign them duties. In so doing, the President of the State shall
designate portfolios for each Pyidaungsu Government Minister,
(6) the President shall report to the
Pyidaungsu Hluttaw every time he appoints and assigns duties to the Pyidaungsu
Government Ministers,
(7) Pyidaungsu Government Ministers shall be
responsible to the Pyidaungsu Hluttaw through the President.
[Right to reject Attorney-General]
The Work Committee Chairman clarified the
Pyidaungsu Hluttaw shall not have the right to reject the person nominated by
the President to be appointed Pyidaungsu Attorney-General unless it can prove
clearly that he is not qualified for being Pyidaungsu Attorney-General.
The President of the State, although being
the Head of State, the highest organ of the sovereign powers in the nation is
the Pyidaungsu Hluttaw. Pyidaungsu Hluttaw should have the right to criticise
and discuss President's nomination of Pyidaungsu Attorney-General submitted to
it whether the nominee is suitable or not although he possesses prescribed
qualifications for the position. Then only will it get able and good person.
Appointment should not be made just because the person concerned possesses
prescribed qualifications. So, the provision preventing the Pyidaungsu Hluttaw
from rejecting the nomination should not be included.
When the Pyidaungsu Hluttaw is to impeach and
dismiss the government, it can dismiss the Prime Minister and Ministers only;
it can again elect the new Prime Minister to work with the President and
Ministers. It would then be beneficial to the country.
[Region/State government]
In connection with forming the Regional
Government or State Government or appointing the Region or State Chief Ministers,
the following principles should be laid down:
(1) Region Government or State Government has
been formed in respective Regions and States,
(2) Region or State Government is constituted
with the following persons,
(a) Region or State Chief Minister,
(b) Region or State Ministers,
(3) The Region or State Government shall
(a) designate Region or State Ministries as
necessary. Moreover, it shall change or increase the number of Ministries,
(b) designate the number of Region or State
Ministers as necessary. Moreover it shall increase or decrease the prescribed
number of Ministers,
(4) Region or State Chief Minister and
Ministers shall be those who have attained the age of 35 years,
(5) to appoint and assign duties as the
Region or State Chief Minister,
(a) the Region or State Hluttaw shall elect,
through secret votes, a Hluttaw representative from among the Region or State
Hluttaw representatives,
(b) the Region or State Chief Minister shall
submit the nomination of Hluttaw representative approved by the Region or State
Hluttaw concerned to the President of the State,
(6) the President shall appoint the Hluttaw
representative submitted by the Region or State Hluttaw Chairman as Chief
Minister of the Region or State concerned and assign him duties.
U Kya Ha Shel
U Kya Ha Shel of the Lahu National
Development Party submitted the remaining part of the paper.
In connection with appointment of Region or
State Advocate-General and assigning duties, he suggested the following
principles should be laid down: --
1. the Chief Minister of region or state
shall get the approval of the region or state Hluttaw in appointing and
assigning duties to a person having the following qualifications as region or
state Advocate-General in order to get legal advice and assign duties of a
legal character and submit to the President:
(a) who has attained the age of 40 years,
(b) with the exception of age limit, having
the qualifications prescribed for region or state Hluttaw representatives,
(c) (1) for judicial officer or law officer
they must have served in the post, not lower than region or state level, for at
least five years or in the post not lower than district level for at least 10
years,
(2) for Advocates of Taya Hluttaw (High
Court) for 15 years' standing,
(d) who is loyal to the State and the
citizens.
2. Region or State Advocate-General is
responsible to the Region or State Chief Minister.
3. if there is reason to impeach the
Advocate-General of a region or state, it shall be done in accord with the
provisions of the Constitution prescribed for the Chief Minister or any
Minister of region or state.
4. in connection with the resignation,
removal from office, filling of vacant post or assuming that the person has
retired in the case of civil service personnel, the provisions of the
Constitution prescribed for the Chief Minister or Ministers of region or state
also concerns the Advocate-General.
5. if region or state Advocate-General is
civil service personnel, he shall be considered to have resigned from his post
in accord with service rules, from the date he is appointed region or state
Advocate-General.
6. duties, rights and privileges of the
region or state Advocate-General shall be prescribed by law.
[Yangon City]
He suggested the following should be laid
down as basic principles in connection with the administration of Yangon City:
1. All districts and townships within Yangon
City development area on the day the State Constitution comes into force are in
Yangon City that is the Union territory,
2. The administration of Yangon City is under
the administration of Yangon Region Government,
3. Yangon City Development Committee shall be
constituted with persons elected for the purpose from districts and townships
in the Yangon City Development Committee area,
4. Yangon City Development Committee shall be
responsible to the Yangon Region Government,
5. Duties, rights and privileges of the
Yangon City Development Committee shall be prescribed by law.
In conclusion, he said the proposals on the
chapter "The Executive" had been presented with the aims of building
a genuine multi-party democratic State where worldly values justice, liberty
and equality flourish.
Union Kayin League
National Convention delegate U Saw Than Aung,
Vice-Chairman of Union Kayin League, submitted a proposal paper on formation of
the chapter the Executive.
He spoke of experiences in administrative
systems of various eras -- colonial, post-independence parliamentary, Myanmar
Socialist Programme Party and State Law and Order Restoration Council -- and
said that based on these experiences, the party's proposal paper on the
Legislative, the Executive and the Judiciary, as clarified by Chairman U Aung
Toe, was submitted constructively, believing a new administrative system to be
adopted will benefit generations to come.
He said the following should be laid down as
fundamental principles:
1. the head of State is the President of the
State;
2. the executive power of the State is
distributed among the Union, regions and states;
3. the self-administrative power is
distributed to self-administered areas as stipulated by the State Constitution;
4. executive organs of the Union, regions,
states, self-administered areas and districts include Tatmadaw servicemen
nominated by the Commander-in-Chief of Defence Services to undertake
responsibilities of defence, security, border area administration, etc.
He explained on the basis of experiences in
the executive systems of Myanmar in history and some facts related to politics,
the economy and social affairs that Myanmar should have a strong, firm leader
whose position must be in compatible [sic] with the presidential executive
system and conforms to the wishes of the national races. The facts he cited of
Myanmar are being a nation made up of various national races, being situated
between the two nations having largest populations in the world, being
surrounded by some poor nations, being a littoral country, being rich in
national resources and being coveted by world nations.
He said the government should be formed with
the following persons:
1. the President of the State;
2. the Vice-President;
3. the Union Ministers;
4. the Attorney-General of the Union.
He said the President of the State should
practise a means of selecting and appointing Union Ministers after obtaining
approval from the Union Hluttaw, and selection is to be made from among Hluttaw
representatives-elect or non-Hluttaw representatives-elect possessing
prescribed qualifications and, if necessary, experienced intellectuals and
intelligentsia should be included.
The President shall obtain names of Tatmadaw
servicemen Hluttaw representatives, who will carry out duties in defence,
security and border area administration, from the Commander-in-Chief of Defence
Services, and they must possess qualifications prescribed for Union Ministers.
The President is to submit their names to Pyidaungsu Hluttaw for approval.
He said that if it is necessary, regarding
the affairs of the State, to appoint Tatmadaw servicemen Union Ministers in
addition to ministries of defence, security, home affairs and border affairs,
it shall be done so after coordination with the Commander-in-Chief of Defence
Services and obtaining approval from Pyidaungsu Hluttaw.
Union Ministers shall be directly responsible
to the President.
[Self-administered area government]
He said the following should be laid down as
fundamental principles in connection with self-administered district/zone [sic]
Leading Bodies.
1. the self-administered division and
self-administered zone are of equal status;
2. self-administered power shall be
distributed to them;
3. self-administered division leading body
(Oo-zi Aphwe) and self-administered zone leading body (Oo-zi Aphwe) shall
exercise legislative power distributed to them;
4. Tatmadaw servicemen shall constitute
one-fourth of members in the respective leading body;
5. it shall be constituted with not less than
10 members;
6. there shall be a representative each for a
national race having a population of 10,000.
[Local government]
Regarding regional administration, he said
the administrator, of respective service personnel organization, shall be made
to continuously undertake district and township-level administrative duties and
if necessary, Tatmadaw servicemen, assigned by the Commander-in-Chief of
Defence Services, shall participate together with the administrator in district
level to be able to carry out duties in security, enforcement of law and
maintenance of peace and tranquillity.
Regarding ward and village administrative
level, he said it is one in constant relation with the people and there should
be administrators elected by the people in ward and village administration.
Their duties and rights should be prescribed by enactment of law. He also
suggested a village supervisory organization be formed with the village-tract
administrator as chairman.
He said the party had put forward proposals
on the chapter the Executive in brief and priority should be given to the
following points in laying down fundamental principles for respective chapters:
1. the Constitution being written is to be
adopted after being reviewed with great care whether in conforms to the
geographical conditions of Myanmar, various class strata, affairs of various
national races and whether it brings about political, economic and social
benefits for the people who should enjoy fruits of labour equitably;
He said an assurance that guarantees an
individual or the entire mass of people the right to living [sic] a life free
of anxiety, the right to liberty and the right to pleasant, enjoyable
livelihood shall be provided accurately and firmly in the Constitution.
It is of great importance the administrative
machinery of our country, which is neither a developed nor developing nor
impoverished nation, to be in consonance with the time, system and occasion for
we are in a time while full strength is being rallied to be able to get into
the path of prosperity [sic], he said.
He noted it is true that the nationals, no
longer wishing to live under the monarchic system or colonial system or
one-party system, have begun to enter into a genuine democracy system and he
put forward some detailed principles which, the party believes, will benefit
the administrative machinery to be established.
He remarked that regarding the administrative
system as clarified by Work Committee Chairman U Aung Toe, an executive law
will be emerging as a contract between the people, who are ruled, and a class,
who will rule, and said proposals were put forward for the security, liberty
and joy of all nationals, non-disintegration of national unity and prosperity
and progress of a new, peaceful nation.
Kokang Democracy and Unity Party
U Lau Hsin Kwan, National Convention delegate
of Kokang Democracy and Unity Party, submitted a proposal paper on formation of
the chapter the Executive.
He said as the sovereign Union of Myanmar is
built up with all national races, it is the duty of all the national races to
plan for the perpetuation, solidarity, unity and prosperity of the State.
It is found that the Work Committee
Chairman's address 'administrative power is distributed among regions or states
and self-administered areas' conforms to requirements in political, economic,
social and nationalities affairs, he commented.
As the administrative power enables national
races to manage their life, it will consolidate national unity and perpetuate
the State and sovereignty, he noted.
He said state or region government should be
formed as stipulated in the State Constitution as in the formation of the Union
Government.
In forming region and state government, he
said, there was no suggestion to be put forward by the party as to appointment
and assignment of duties and rights and privileges of
1. state Chief Minister;
2. state or region Ministers;
3. state or region Advocate-General;
4. state or region Auditor-General, and
formation of departments of respective
national races affairs in states and divisions.
[Local government]
Regarding district and township level
administration, he said that election is to be held within democratic means and
administrative authorities whom people no longer accept are to be impeached,
especially persons responsible for administration in the levels are in close
contact with the people [sic]. He said there will not be control on
non-reciprocity, non-democracy and dictatorial manner that can exist between
the people and district-level authorities if there are no explicit provisions
for the district, township and village level administration.
He stressed the need to lay emphasis on the
people's wish as success of a system depends on the response of the people,
saying only when noblest and worthiest of worldly values and democracy are
brought about for the people will it be in conformity with democratic
practices.
[Local government]
As there are characteristics of population,
geographical conditions, language and customs, formation of self-administered
area leading bodies should be based on wishes of the national races in the
respective area within the framework of the Constitution, he commented.
[Union territories]
As there has been a fundamental principle
that areas of special situation in connection with defence, security, administration
and the economy of the entire Union are designated Union territories and placed
under direct administration of the President of the State, the party had no
discussions as to duties, rights, privileges and impeachment of persons in the
organization which will exercise administrative power for an area of special
situation such as Cocogyun, he said in conclusion.
Wa National Development Party
U Nyi Paloke of Wa National Development Party
said legislative, executive and judicial sovereign powers have to be wielded by
people's representatives to pre-empt emergence of dictatorial systems; and
there has to be check and balance between the three estates; the executive
government has to give life to laws passed by the legislature and implement
programmes laid down by the Pyidaungsu Hluttaw; it has to supervise for regular
functioning of the administrative machinery; it has to strive for security,
peace and development at all times; services personnel manning the
administrative machinery must have no political party attachments; they must be
loyal to the State; they are not for any individual political party but for the
entire people; political parties must not meddle in the administrative
machinery and personnel of administrative machinery must not meddle in political
parties; they must observe their norms in their own roles, otherwise it could
lead to disintegration of the country.
In a Union, the Union government and State
governments have shared powers; the State governments have no right to exercise
powers of the Union government, and the Union government has not right to
encroach upon powers of the State governments; so distribution of powers needs
to be explicitly prescribed in the Constitution; if a country can promote the
rule of law and rid itself of the rule of man, people will have equality of
status and equality of opportunity and equality before the law and there will
be peace and harmony.
In a democratic country, sovereign power
resides in the people on behalf of the people, representatives freely elected
by secret ballot make laws and carry out executive responsibilities; with the
approval of the Pyidaungsu Hluttaw, the government lays down policies; these
are implemented by government service personnel; they are not politicians; they
serve the country loyally and dutifully, independent of political activities;
if they want to go into politics, they have but to resign from government
service and do so.
It is said that man is the measure of
everything; with the participation of the people there can indeed be
"hundred victories in hundred battles"; conditions must be created to
enable the people to participate and shape their own destiny.
[Self-administered area government]
In connection with formation of oozi aphwes
or self-administered divisions or zones, detailed principles should be laid
down as follows:
1. Self-administered division oozi aphwe and
self-administered zone oozi aphwe must be formed at self-administered division
and self-administered zone; these oozi aphwes also exercise legislative power
conferred by the Constitution;
2. Self-administered division oozi aphwe and
self-administered zone oozi aphwe shall have at least ten members;
3. Self-administered division oozi aphwe and
self-administered zone oozi aphwe shall be formed with the following persons:
(a) Region or State Hluttaw members elected
from townships in self-administered division or self-administered zone;
(b) representatives chose and additionally
appointed by persons mentioned in Sub-para (a);
4. Self-administered division oozi aphwe or
self-administered zone oozi aphwe members including Region or State Hluttaw
members elected from townships in self-administered division or
self-administered zone and representatives chose and additionally appointed by
them are to coordinate among themselves and choose a suitable person from among
Region or State Hluttaw members elected from townships in self-administered
division or self-administered zone, as chairman of self-administered division
or chairman of self-administered zone; the nominations of persons so chosen
shall be submitted by the Region or State government, through the Prime
Minister of the Union to the President of the State;
5. The President of the State shall appoint
these nominees as chairman of self-administered division or chairman of
self-administered zone; they shall also be head of self-administered division
or of self-administered zone;
6. Chairman of self-administered division or
self-administered zone is ex-officio Region or State minister; so provisions
regarding the Region or State minister shall also apply to chairman of
self-administered division or chairman of self-administered zone.
At the plenary session of the National
Convention on 9-1-93, Convention Convening Commission Chairman exhorted all to
unitedly strive to make it a National Convention that could serve the interests
of the State and the national people to the highest extent, most significantly
in the political history of the country.
Times, systems and historical events do not
come about without any cause; effects come about only because of various
causes; it is vitally needed to bring forth the new Constitution well,
reviewing past lessons objectively and drawing positive strength from past
history; otherwise, if the past events are ignored, endeavours to repair the
old era and build a new one will result only in the destruction of the old era,
without the emergence of a new one. (NLM 12/12)
Dec. 12: The Plenary Session of the National
Convention continued, with 522 of 590 delegates present. Further proposal
papers on the Executive were read by representatives of the political parties
delegates groups [full texts]:
Shan Nationalities League for Democracy
U Sai Soe Nyunt of Shan Nationalities League
for Democracy said they were making proposals with sincere goodwill for
emergence of an enduring State Constitution, for equality of all the people
before law, for perpetual unity and amity in equality of all national brethren,
for the principles of justice, liberty and equality, and for flourishing of a
genuine democracy.
He said it was vitally necessary that under
this Constitution the national races secure guarantees of their rights and be
able to manage themselves for development of their areas; he said he was
one-third happy to learn some national races will be given self-administered
areas; another one-third happiness would come when the Constitution could
provide, fairly for all, self-administered areas to the satisfaction of
respective national races; the remaining one-third would have to be kept aside
till the time when self-administration could be freely practised in reality.
In continuation, he said, it was time to lay
down principles to have political self-prescribing rights and
self-administration in connection with the cause of states of the national
races that have traditions and prominent existence in history.
As our country is a Union, the form of
administration should be one in conformity with the essence of the Union
inhabited together by all kinds of national races; it needs to be a genuine
democratic administrative system contributory towards a true Union structure,
amity of all national races, equality, flourishing of multi-party democracy
system, and further development of the nation.
[Rotating vice-presidency]
He submitted a proposal that, as our Union is
one inhabited by 135 kinds of national races inclusive of the eight namely
Kachin, Kayah, Kayin, Chin, Bamar, Mon, Rakhine and Shan, vice-presidency
should be given in turns in alphabetical order of the names of the states, to
suitable persons from among national Hluttaw members coming from the states to
the Pyidaungsu Hluttaw; it will bring about closer amity among the national
brethren and consolidate unity.
He said the following principles should be
laid down:
1. The executive head of the State is the
President of the State;
2. (a) The executive power of the State is
distributed among the Union, Regions and States;
(b) Self-administration powers are delegated
to self-administered areas as prescribed by the Constitution;
3. The Union government shall be set up with
the following persons:
(a) President of the State
(b) Vice-president
(b-1) A suitable person shall be chosen among
national Hluttaw members coming from the states to the Pyidaungsu Hluttaw to serve
as vice-president in turn in alphabetical order of the names of the states.
(c) Prime Minister of the Union
(d) Union Ministers.
4. The Prime Minister of the Union shall
(a) seek the approval of the Pyidaungsu
Hluttaw to prescribe Union ministries as necessary, make changes or additions
thereto;
(b) prescribe the number of Union ministers
as necessary, and increase or decrease the number;
5. Responsibility
(a) the Union ministers shall be responsible
to the Prime Minister of the Union;
(b) the Prime Minister of the Union shall be
responsible to the President of the State;
(c) the Union government inclusive of the
President of the State shall be responsible to the Pyidaungsu Hluttaw;
6. Union ministers must possess the following
qualifications:
(a) they must be Pyidaungsu Hluttaw members;
(b) they must be at least fully 35 years of
age;
(c) they must have qualifications prescribed
for Pyithu Hluttaw members;
(d) they must be loyal to the State and the
citizenry.
[Appointment of Union ministers]
In the matter of appointing Union ministers,
it is held that, on account of experiences in history, from lessons that should
be taken of events in world nations, to be in accord with the conditions in the
country, and for emergence of a powerful, prosperous and developed Union, the
right to appoint Union ministers should not reside in any individual; it should
be a pattern wherein the Prime Minister of the Union, the President and the
Pyidaungsu Hluttaw coordinate among themselves and choose the most suitable
persons as Union government ministers.
[Attorney-General]
It is necessary for the Union government to
choose and appoint a qualified and suitable person as Attorney-General of the
Union; this person needs to be specially knowledgeable and experienced in law;
so such a person should be chose from among Pyidaungsu Hluttaw members or
non-members; but this person should not be included in the Union government
because this person may not be a Hluttaw member but a qualified person from
outside; Union government is a body exercising executive power on behalf of the
people who are owners of the three powers of State originally, and persons who
are not Hluttaw members should not be prescribed as members of Union
government.
[An independent Auditor-General]
It is necessary for the Pyidaungsu Hluttaw to
choose and appoint a qualified and suitable person as Auditor-General of the
Union to examine accounts of expenditures and receipts of government
organizations under the Union government and report to the Hluttaws concerned;
such a person specially skilled in accounts should be chosen from among
Pyidaungsu Hluttaw members or non-members; but it should not be laid down as a
principle that "the Auditor-General shall be directly responsible to the
President". The Auditor-General being a person to examine the accounts of
the government should not be placed under the authority of the President; the
General Accounting Office in the United States of America is under the
Congress; so it should be laid down that "the Auditor-General shall be
responsible to the Pyidaungsu Hluttaw."
U Sai Nyunt Lwin
U Sai Nyunt Lwin then presented the remaining
part of the proposal paper.
[Region/State government]
The executive power of the State is not held
in control by the central or Union government but distributed to Regions and
States; so there will be departments concerning Union government and Region or
State governments; the right of appointing services personnel at Region or
State level should be given to Region or State government; only with such
distribution of rights will it be possible to avoid the extreme of too much
central control.
It is proposed the following be laid down as
detailed principles:
1. Region government shall be formed in every
Region; State government shall be formed in every State;
2. Region or State government shall be formed
with the following:
(a) Chief Minister of Region or State;
(b) Ministers of Region or State;
3. The Chief Minister of the Region or State
shall prescribe Region or State ministries and submit them to the President of
the State; to make changes or additions in ministries, the chief minister of
Region or State shall consult the Hluttaw concerned; the amended list of ministries
shall be reported by the Chief minister of Region or State to the President;
4. The Chief Minister of the Region or State
shall prepare the list of ministers, seek the approval of the Region or State
Hluttaw and submit it to the President of the State;
5. Region or State chief minister and
ministers must possess the following qualifications:
(a) they must be at least fully 35 years of
age
(b) they must have qualifications prescribed
for Region or State Hluttaw members;
(c) they must be loyal to the State and the
citizenry.
6. Region or State Hluttaw members shall
choose one Hluttaw member from among themselves, with the support of the
majority, as chief minister; this nomination shall be submitted to the
President of the State; the President of the State shall appoint this nominee
as chief minister of Region or State.
7. When the President of the State appoints
Region or State ministers, the chief minister of Region or State shall
prescribe ministry or ministries each minister to take responsibility for.
8. The chief minister of Region or State
shall prepare lists of chairmen of oozi aphwes of self-administered divisions
and self-administered zones and submit them to the President of the State; the
President of the State shall appoint the nominees as Region or State ministers.
9. The President of the State shall report
appointments of Region or State chief minister and ministers to Region or State
Hluttaw and to Pyidaungsu Hluttaw.
10. Region or State ministers shall be
responsible to the chief minister of Region or State.
11. Region or State government shall be
responsible to Region or State Hluttaw.
12. Region or State chief minister shall be
responsible to the President of the State.
13. The term of office of Region or State
chief minister and ministers shall normally be as that of Region or State
Hluttaw.
14. The chief minister of Region or State
shall resign from the post if the person no longer enjoys the support of the
majority of Region or State Hluttaw members.
15. To fill that post which falls vacant,
Region or State Hluttaw members shall choose one Hluttaw member from among
themselves, with the support of the majority, as chief minister; that
nomination shall be submitted to the President of the State; and the President
of the State shall appoint that person as chief minister.
[Self-administered areas]
In connection with self-administered division
oozi aphwe or self-administered zone oozi aphwe, the following should be laid
down as basic principles:
1. Self-administered division oozi aphwe or
self-administered zone oozi aphwe shall be formed only after prior fixation of
the minimum and maximum number of members therein.
2. These oozi aphwes shall include Region or
State Hluttaw members elected from townships in self-administered division or
self-administered zone.
3. For the prescribed number of oozi aphwe
members, on national race representative shall be chosen by vote for each
national race with at least 10,000 population, from among national races living
in the self-administered division or self-administered zone.
4. If the number of Region or State Hluttaw
members elected from townships in self-administered division or
self-administered zone is not up to the prescribed number of oozi aphwe members,
the rest shall be elected by vote.
5. One from elected oozi aphwe members shall
be elected by secret ballot as chairman of self-administered division or
self-administered zone.
6. For appointment of this chairman of
self-administered division or self-administered zone as Region or State
minister, the chief minister of Region or State shall present the nomination to
the President of the State.
7. The President of the State shall appoint
this nominee as chairman of self-administered division or self-administered
zone.
8. Just as the chairman is elected by secret
ballot from among oozi aphwe members, the secretary too shall be elected by
secret ballot from among oozi aphwe members.
9. The oozi chairman shall be responsible to
the chief minister of Region or State.
10. Responsibilities and rights of
self-administered division or self-administered zone chairman and oozi aphwe
members shall be prescribed by law.
In conclusion he said he believe their
proposals will be in accord with aspirations of the entire people and that he
believed a compact, firm and enduring Constitution would emerge in the not too
distant future.
[National Unity Party]
U Khin Maung Gyi of National Unity Party
submitted the proposal paper of the National Unity Party on formation of the chapter
"The Executive".
He said the State Law and Order Restoration
Council has been striving for strengthening national solidarity, emergence of a
new constitution and establishment of a peaceful, modern and developed nation.
It is also found to be making necessary changes in political, economic and
administrative fields to be in readiness once a new constitution is
promulgated. It is also laying firm foundations in preparation for the new
nation.
At the same time, National Convention
delegates representing different national forces have been deliberating further
to lay down basic principles to be included in writing the constitution. In so
doing, an administrative structure conforming to the future Myanmar and Myanmar
peoples is to be formulated after appraising the conditions past and present in
the country. The National Unity Party is of the opinion that efforts are to be
made for the emergence of a strong and decisive government, effectiveness and
promptness in supervision and control at different levels of administration,
preciseness in discharging duties and taking responsibilities, proper
coordination and cooperation, paying attention to people's wishes and
aspirations, being responsible to the public, emergence of democratic
machinery, strengthening of an administrative system safeguarding public
interests and of an administrative system which ensures the rule of law and
community peace, without turning back to the structure of colonial period an
based on the experiences gained during the period from the time of regaining
independence to the present.
The National Convention has already laid down
basic principles on separation of the three powers, application of an
administrative system headed by the President and introduction of two
legislative Hluttaws, and the National Unity Party supports them.
[Limited separation of powers]
The three powers are thus separated to
exercise reciprocal control in order to prevent misuse of power as in the case
of dictatorship by a person or a group. A specific principle has been laid down
so that legislative, executive and judicial powers could be exercised by
specific person and specific organizations. However, internal and external
experiences indicate that the three powers could not be totally separated in
practice. As such, the National Convention has also accepted the mutual
contacts, mutual support and reciprocal control of the three powers.
Accordingly, the government led by the
President would have to carry out effectively the decisions and laws passed by
the Hluttaw which would exercise the legislative power. The legislative Hluttaw
too would have to help the government's administrative duties through the
passing of resolutions and introduction of relevant laws.
The Pyidaungsu Hluttaw would have to
designate the Pyidaungsu Government Ministerial portfolios and the number of
Pyidaungsu Ministers to enable the presidential government discharge duties
effectively. This is not just an administrative undertaking. The objective of
the entire Union and national objectives as well as projects throughout the
country are to be taken into account to designate the Ministerial portfolios
and the number of ministers. In so doing, there would be laws for each and
every ministries designated [sic]. And the Ministries would have to get legal
support.
Moreover, designation of Ministerial
portfolios and the number of ministers is also concerned with budget allotment,
financial assistance, and collection and use of revenues. As formation of
Ministries is to be undertaken with the use of public funds, it is related to
public interests.
So, formation of Amyotha Hluttaw represented
by different areas in the Union and Pyithu Hluttaw represented by the entire
mass of the country and Pyidaungsu Hluttaw's designation of Ministerial
portfolios and the number of ministers are appropriate.
The President of the State, in exercising
executive powers, would independently choose persons to serve as Pyidaungsu
Ministers, assigning them specific duties and, portfolios jointly and so forth
in the government under his leadership.
This would reflect separation of three powers
and contribute to reciprocal control. Coordination and harmonious relationship
between the Legislative Hluttaw and the President would be evident.
Hence, Pyidaungsu Hluttaw should decide to
designate the Pyidaungsu portfolios and the number of ministers. The President
should therefore choose persons as Pyidaungsu Ministers, assign them specific
duties, make changes in portfolios and take charge of administrative matters in
the Pyidaungsu government.
[Local government; need for local leading
bodies]
He noted the Work Committee Chairman, in
connection with regional administration, had clarified that district and
township administrators, who are service personnel, should be made to discharge
their administrative duties continuously in the district and township levels.
The point is a missing link in democracy at
different levels in the country and moreover this is like restoration of a
machinery of colonial era. In the central level, election of the President and
representatives for the Pyidaungsu Hluttaw are to be carried out according to
democratic practices following election methods for electing people's
representatives. Similar election methods are to be used in the regions, states
and self-administered areas. In the district and township levels, however, each
administrator would be made to discharge duties and at the most basic level of
wards and village-tracts, an elder would be elected.
Pyidaungsu (Union) government is at the Union
level, according to the present constitution to be written. Region or state
level would have a government of its own. There would be leading bodies (Oozi
Aphwe) at the self-administered divisions and self-administered zones. But
according to the clarifications of the Work Committee Chairman, the practice of
discharging duties group-wise in the district, township and ward/village-tract
levels is omitted.
Discussing district level administration, he
said the role of district level should be considered regarding administrative
machinery to be included in the constitution. The district level is to serve as
a link to see that policies and programmes of the Pyidaungsu government and the
state/ region government are carried out by the townships and wards/villages
concerned. Hence, administrative duties at district level should be carried out
by district administrative leading bodies instead of an administrator. The
leading bodies should be constituted with persons chosen by the respective
region/state chief minister in consultation with his government. The
administrator, a service personnel, is to serve as the secretary in the
district leading body. The structures of administrative bodies at different
levels would then conform to one another.
According to objective conditions in Myanmar,
townships and ward/village-tracts are basic areas in implementing political,
economic, administrative, security and social tasks. The people of different
strata comprising national races live together in these areas. Administrative
bodies in these areas would have to deal with the people most closely. So,
administrative bodies should be formed at the township and ward/village-tract
levels. It would be helpful for the emergence of democratic machinery. Then
only would the public opinion, public trust and public cooperation be acquired
in the basic and strategic areas in undertaking tasks.
Township leading bodies should be formed with
appropriate number of chairmen of ward/village administrative committees in the
township concerned. The chairman of the Township administrative body would have
to be elected from among the chairmen of wards and village-tracts after due
coordination among them. The township administrator, a service personnel,
should serve as secretary in the township administrative leading body.
By so doing, there would be no missing link
in the different levels of administration but democratic practices could be
adopted throughout.
He cited the Work Committee Chairman as
clarifying that ward/village-tract administrators elected by the public should
serve in the ward/village-tract administration.
According to the prevailing conditions,
certain large villages have become sub-townships or nearly towns because of
density in population or extent of work or being located in a strategic
position. It would be difficult for a person to carry out administrative
duties.
A specific law should be promulgated in
connection with election of ward/village-tract administrative committee
specifying duties and rights.
In connection with the formation of the
chapter "The Executive" the National Unity Party presented its views
with the aims of flourishing of genuine multi-party democracy, formation of a
strong government supported by the public, application of democratic practices
in proper order at various administrative levels in the country in accord with
the Constitution, formation of a democratic machinery from the base to the
central level, emergence of a new enduring Constitution within the framework of
National Convention objectives and basic principles laid down by the National
Convention and success of the National Convention.
Mro (or) Khami National Solidarity
Organization
U San Tha Aung of Kyauktaw Constituency 2,
Rakhine State, National Convention delegate of Mro (or) Khami National
Solidarity Organization, submitted a proposal paper on formation of the chapter
the Executive.
He said the following, except Para 4,
explained by the Work Committee Chairman at the National Convention Plenary
Session on 2-9-94, should be laid down as fundamental principles:
1. The head of executive power of the State
is the President of the State.
2. (a) the executive power of the State is
distributed among the administrative organs of Pyidaungsu, regions and states;
(b) self-administrative power shall be
distributed to self-administered areas as stipulated by the State Constitution.
3. Pyidaungsu Government is constituted with
the following persons:
(a) The President of the State;
(b) Vice-Presidents;
(c) Union Ministers;
(d) Union Attorney-General.
4. The President of the State shall --
(a) prescribe the number of ministries as
necessary and in addition, change or increase the prescribed ministries;
(b) stipulate the number of Union Ministers
as necessary and in addition, increase or reduce the stipulated number.
5. Union Ministers shall possess the
following qualifications:
(a) being a person who has completed 40 years
of age;
(b) possessing qualifications prescribed for
Pyithu Hluttaw representatives except age limit;
(c) being a person who is loyal to the State
and citizens.
[Region/State government]
He said the following, except Para 3, should
be laid down as fundamental principles:
1. The region government is formed in each
region and the state government is formed in each state;
2. The region or state government is formed
with the following persons:
(a) region or state Chief Minister;
(b) region or state Ministers;
(c) region or state Advocate-General;
3. The President shall --
(a) prescribe the number of region or state
ministries as necessary and in addition, change or increase the prescribed
ministries;
(b) stipulate the number of respective region
or state Ministers as necessary and in addition, increase or reduce the
stipulated number.
4. Region or State Chief Minister and
Ministers shall possess the following qualifications:
(a) being a person who has completed 30 years
of age;
(b) possessing qualifications prescribed for
region or state Hluttaw representatives except age limit;
(c) being a person who is loyal to the State
and citizens.
He said national brethren inhabiting the
Union shall enjoy equal fundamental rights and loving kindness and goodwill of
the Union shall be equally dispensed to all sons and daughters of the Union,
who are national races. He spoke of the unity of national races, as the saying
'blood is thicker than water', is evident in history, saying an enduring
Constitution, which will rally all national races together for
non-disintegration of the Union, non-disintegration of national unity,
perpetuation of sovereignty and prosperity of the Union and bring about
benefits to all the nationals, is being written. He said we cannot say when
such an occasion will recur and so, a firm principle for the majority or
minority of national races should be provided in the Constitution.
[Self-administered areas]
He said the following should be laid down as
detailed fundamental principles:
1. The self-administered division or
self-administered zone leading body --
(a) shall be constituted with the chairman,
the secretary and members all of whom are people's representatives elected by
the people;
(b) shall have powers vested in them by the
Constitution;
(c) shall include the minority of national
races in the respective self-administered division or self-administered zone as
best as possible and shall not be based on the population limit.
He said the party's proposals were based on
the National Convention objectives and put forward honestly and candidly and
the party had no discussions as to remaining topics. (NLM 12/13)
Dec. 13: The Plenary Session of the National
Convention continued, with 523 of 590 delegates present. Proposal papers on the
Executive were read by delegates from the representatives-elect delegates group
[full texts]:
Representatives-elect delegates
[National Unity Party]
U Thein Tun, a representative-elect of
National Unity Party from the representatives-elect delegates group said that
at present the State Law and Order Restoration Council is striving for further
consolidation of national unity, emergence of a new Constitution and a
peaceful, tranquil and modern developed nation, effecting changes in political,
economic and administrative fields as necessary to be ready for the new
Constitution, building firm foundations for the new nation.
At the same time National Convention
delegates representing respective political forces are going ahead stage by
stage with coordination and discussions to lay down basic principles to serve
as basis in writing the new Constitution; currently they are working to lay
down a new form of administration reviewing those of the past and the present,
and finding one suitable to the national people of the country in future;
drawing lessons from experiences from the time of regaining of national
Independence up to the present day and without reverting to the ancient
colonial structure, the task at hand is to shape a new, strong and decisive
government, to have effective and expeditious supervision of various levels of
administration, to clearly establish taking of responsibility at various
levels; to have good linkage, coordination and co-operation, to heed and value
the voice and aspirations of the people, to bring forth a democratic
administrative machinery, to safeguard the interests of the people, and to
strongly guarantee rule of law and order and community peace and tranquillity.
[Separation of powers]
He noted that a principle has already been
laid down for separation of State powers, practice of the Presidential
governmental system, and for having two legislative Hluttaws; and his party has
concurred with that.
Separation of powers, he went on, was to
control power with power, as there could develop tendencies towards dictatorial
systems, abuse of powers, and one-sided persecutions when powers accumulated in
the hands of an individual or group; that was why the principle was laid down
for separate individuals and groups to exercise legislative power, executive
power and judicial power; but in practice it was not possible to have a
water-tight separation, as could be seen from experiences at home and abroad;
so it has been agreed to have mutual interrelation, assistance and controls in
exercise of the three powers.
The Presidential government is to give effect
and life to resolutions and laws passed by the legislative Hluttaw; the
legislative Hluttaw is to pass necessary resolutions and laws for effectiveness
and success of the executive functions of the Presidential government.
The prescribing of Union ministries and the
fixing of the number of Union ministers should be done by the Pyidaungsu
Hluttaw; they are not just executive tasks; they have to be done with
comprehensive view of the entire Union's objective, national aspirations; and
there will also have to be legislation for ministries, and there will be
necessity to augment ministries from the point of view of legislation; and it
also involves budgeting and public finances; so it concerns the interests of
the entire people; so it is proper that the prescribing of the number of
ministers should be done by Pyidaungsu Hluttaw comprising the Amyotha Hluttaw
and Pyithu Hluttaw.
After that the President is to exercise such
executive powers as appointing ministers, assigning ministries etc.
In this way it concretises the separation of
three powers with reciprocal control and assistance, and interrelation with
harmony between the legislative Hluttaw and the Presidential government.
[Local government]
Work Committee Chairman had clarified that
district and township administration should be assigned in continuation to
district administrative officers and township administrative officers.
Here, there is a break in linkage of
democracy in administration at various levels and it is like reviving a part of
the colonial era machinery. At the central level, the President and people's
representatives to sit in Pyidaungsu Hluttaw are elected by democratic process
through elections; so also at Regions, States and self-administered areas, the
way of elections is to be practised; but it is found that at district and
township levels, administration is to be assigned to an individual
administrative officer, a service personnel, and at the most primary ward and
village-tract level, a community head is to be elected.
In the Constitution envisaged now, there will
be Union government at Union level; there will be governments concerned at
Region or State level; and there will be oozi aphwes at self-administered
divisions and self-administered zones but, according to clarification by the
Work Committee Chairman, it is found the style of administration by a body is
obliterated at district, township and ward/village tract levels.
District level is for linkage and supervision
between Union government, Region or State government and township and
ward/village tracts; district administration should be done by district
administration oozi aphwe rather than by an administrative officer alone; this
oozi aphwe should be formed with persons selected and assigned [by] Region or
State chief minister in consultation with government ministers; the district
administrative officer who is a service personnel should be assigned as
secretary at the oozi aphwe; in this way the form of administration at all
levels would be consistent.
Townships, wards and village tracts are most
primary in implementation of political, economic, administrative, security and
social works; they are also inhabited by all kinds of national races; the
administrative bodies that would emerge at these levels are to work in close
contact with the people and be responsible to the people; so in order to be
democratic in administration at these levels, it is necessary to have
administration undertaken not individually but by a body; administrative bodies
should be formed at township, ward and village-tract levels; only then will it
be possible to work in accord with the wishes of the people and get the
confidence and co-operation of the people in the most primary areas.
The township administrative oozi aphwe should
be formed with suitable number of persons from amongst ward and village-tract
administrative committee chairmen in the township; the chairmen representing
various wards and village-tracts are to coordinate among themselves and elect
the chairman of the township administrative committee chairman [sic]; township
administrative officer who is a service personnel should be assigned as
secretary at the township administrative oozi aphwe; in this way there would be
no break in democratic links and the form of administration at all levels would
be consistent.
The Work Committee Chairman had clarified
that ward and village tract administration should be assigned to ward or
village tract administrators elected by the people. In the present situation,
some villages are nearly as big as sub-townships or towns, by virtue of the
density of population, expansion of productive activities, or location in
networks of roadways; in such a situation it is difficult for a single
individual to undertake administration alone; a separate law should be made on
election of members of ward or village-tract administrative committees, their
duties and rights and responsibilities.
In conclusion he said these are proposals
made by National Unity Party with aims at flourishing of genuine multi-party
democracy, formation of a strong government that has the support of the people,
practising of democracy in administration consistently, emerging of a
democratic machinery from the centre to the base, emerging of an enduring
Constitution in accord with the basic principles laid down by the National
Convention, and smooth success of the National Convention.
Lt-Col. Hla Maung (Retd)
Lt-Col. Hla Maung (Retd),
representative-elect for Kya-in-Seikkyi Constituency-1, Kayin State, of
representatives-elect delegates group submitted his proposal paper on the
chapter "The Executive".
He said in a multi-party democracy system,
the public would be united, sympathetic, disciplined and cooperative and the
Head of State and all concerned in the government, Hluttaws, the Tatmadaw,
administration, security and judicial departments would also be dutiful
reaching in a harmonious relationship between the public and the government.
Then only could law be exercised for social progress. All the people should
discharge their respective duties out of their own volition in an
administrative system. In brief, a government to be formed should possess the
following characteristics of democracy:
(a) power resides in the people,
(b) the power of the government is restricted
under provisions of the constitution,
(c) the government comes into being with the
agreement of the ruled,
(d) a government capable of ensuring basic
human rights,
(e) a government of the majority respecting
the rights of the minority.
A government possessing the above-mentioned
characteristics, should be the one formed with those chosen from among the
Pyidaungsu Hluttaw representatives and then assigned duties.
The President of the State in the government
to be formed would be the Head of State but he would not be directly elected by
the people. He would be elected by the electoral college which would be formed
with Hluttaw representatives; the President would thus be elected by the
Pyidaungsu Hluttaw. Hence the President should be directly responsible to the
Pyidaungsu Hluttaw. The Pyidaungsu Hluttaw constituted with the vote of the
people has exclusive right to exercise the sovereign powers. So, the President
is not the head of the presidential system but he could be described as the
head of the parliamentary system government led by the President.
[Central government]
So, in connection with formation of the
government, the following revised proposal would be submitted:
(1) The Head of State is the President of the
State,
(2) The Pyidaungsu Government shall be formed
with the following persons --
(a) the President,
(b) Vice-President,
(c) Union Prime Minister,
(d) Union Ministers,
(3) The President of the State shall
(a) designate the Union government ministries
as necessary. Moreover, he can make changes in and addition to the designated
ministries,
(b) allocate the number of Union ministries
as necessary. Moreover, he can increase or decrease the number of allocated
number,
(c) the President of the State shall submit
to the Pyidaungsu Hluttaw work done under the above-mentioned paragraphs 3(a)
and (b) and seek its approval.
In the parliamentary system led by the
President, Pyidaungsu Hluttaw chairman would have to assign the leader of the
majority of representatives-elect or leader of the coalition group to form the
government. He would then become the Prime Minister and choose members of the
cabinet from among the Hluttaw representatives in coordination with the
President, after the approval of the Pyidaungsu Hluttaw the President should
issue a gazette assigning duties.
[Independent Attorney-General]
It is appropriate for the President to
appoint a qualified person as Pyidaungsu Attorney-General. It would be
necessary to appoint a Deputy Attorney-General to assist the Attorney-General.
But, duties of the Attorney-General are not like that of a Minister. He would
have to serve as an expert to offer legal advice to the President of the State,
the Prime Minister and the Hluttaws, and as such he should be able to independently
discharge duties. So, it would not be appropriate to include the Pyidaungsu
Attorney-General in the cabinet. He said he nothing to suggest about the
Pyidaungsu Auditor-General.
[Local government]
In connection with district and township
administrative systems, he said out of the elected Hluttaw representatives in
the Pyithu Hluttaw, Amyotha Hluttaw and Region/ State Hluttaws those who have
not been assigned full time duties should lead the district/township advisory
bodies formed in the districts or townships, and the bodies should comprise
those in charge of each department. Necessary committees would be formed in
those bodies to deal with regional development, rule of law, regional security
and defence, health and education and assign duties to those in charge of the
respective departments.
At the village level, however, only the
system of public administration should be applied. The township administrative
body should make arrangements to enable villagers to elect, through secret
votes, a respectable person of good reputation who is able to lead them as the
head of the village administration called "headman" in old days. A
village-tract administrative body would have to be formed depending on the size
of the villages concerned to assist that administrator. It would be appropriate
for the body to carry out duties under the guidance of the township
administrative body.
Every individual has the right to try to
survive, live in freedom and enjoy life. Governments have been formed with
people's votes not to limit those rights but to protect them. All the people
are duty bound to abide by the laws to be able to enjoy the rights by all. The
citizens should not be made to carry out duties through promulgation of laws or
issuing orders but they should do so as civic duty. This practice should be
obtained through the teachings and training by parents and teachers and through
participation in social activities. Then only would they develop cooperation,
mutual understanding, tolerance and duty consciousness, ultimately take part in
social organizations and build a genuine democratic state, he concluded.
Dr. Hmu Thang [& U Aung Thein]
Independent representative-elect Dr. Hmu
Thang of Thangtlang Constituency, Chin State, delegate of Hluttaw
representatives-elect delegates group, submitted a proposal paper compiled by
himself and U Aung Thein, Hluttaw representative-elect of Ywangan Constituency,
Shan State, on formation of the chapter "The Executive".
[Rotating Presidency & Vice-Presidency]
He said fundamental principles regarding the
Head of State as 'the Head of State is the President of the State' and
regarding the executive as 'the head of executive of the State is the President
of the State' have been laid down. He spoke of suggestion of delegate U Yan
Kyin Maw of Shan State Kokang Democratic Party, independent
representative-elect U Tuang Kho Thang of Tamu Constituency, Sagaing Division,
and himself as follows:
"We are going to discuss election of
Vice-President or President. Our Union of Myanmar is made up of Kachin, Kayah,
Kayin, Chin, Bamar, Mon, Rakhine and Shan nationals based on liberty, equality
and equal status. Hence, it is suggested that Presidential candidate or
Vice-Presidential candidate be elected alternately from among Kachin, Kayah,
Kayin, Chin, Bamar, Mon, Rakhine and Shan Hluttaw representatives of Hluttaw
with equal number of representatives elected from regions and states as an
indication of living together on equal status of all national races, and only
then will the meaning of cooperation on equal status be vivid."
So, he suggested that Presidential candidate
or Vice-Presidential candidate of Amyotha Hluttaw be elected from among the
national races alternately.
[Attorney-General and Advocates-General]
He said Union Attorney-General and region or
state Advocate-General are to give legal advice to the President and respective
region or state Chief Minister and if necessary duties be unequivocally
prescribed for implementation of Our Three Main National Causes, safeguarding
democracy system, protecting fundamental rights and privileges of the citizens,
scrutinizing whether functions of regional administrative bodies and personnel
organizations are in accordance with law and if not, for submitting the matter
thoroughly to the respective region or state Hluttaws. To be able to do
prescribe so [sic], he said, it would be appropriate to keep Union
Attorney-General and region or state Advocate-General separately without
including them in the governments of the Union and regions or states. If there
was such an organization as Council of People's Attorneys when the State
economy was promoted under Socialist democracy central-control system so as not
to cause people to suffer, such an organization would specially be necessary
now when market-oriented system, free of State control, is being practised on
the basis of genuine multiparty democracy system so as to be able to protect
fundamental rights and privileges of the citizens, he commented.
He proposed that Union Government or region
or state governments be formed as follows:
1. Union Government is to be formed with--
(a) President of the State
(b) Vice-Presidents
(c) Union Ministers;
2. Region or state government is to be formed
with--
(a) region or state Chief Minister
(b) region or state Ministers
If a review is made of a fundamental
principle as 'the President of the State shall possess specific qualifications
required of the President in addition to qualifications required to stand for
election to the Hluttaw' will reveal qualifications of a Hluttaw
representative, he said.
[Ministers from each region or state]
So, he said, priority should be given in
appointing Union Ministers to selecting from among the Hluttaw representatives
and a Union Minister is to be appointed from each of the regions and states.
The Ministerial position above that is also to be selected from among Hluttaw
representatives and Union Minister should be selected from among prestigious
persons of intellectuals and intelligentsia and State service personnel, if
they possess qualifications prescribed for Hluttaw representatives.
[Self-administered areas]
He quoted Work Committee Chairman's address
on 2-9-94 as saying that to be able to appoint chairman of the
self-administered division or self-administered zone leading body, a suitable
person should be selected from among Hluttaw representatives after coordination
between members of the respective leading body. If the right to select
respective head independently of their own will is given to members of the
self-administered areas, region or state Chief Minister should also be selected
and appointed according to common desire after coordination between
representatives of the respective region or state Hluttaw, he said, adding it
would not only be conformity with democratic practices but also be appropriate
if the President is to appoint the person selected as region or state Chief
Minister and this will contribute to flourishing of multi-party democracy
system.
[Region/State governments]
Regarding appointment and assignment of
duties to region or state Chief Minister as explained by the National
Convention Convening Work Committee Chairman, he said, paras 5, 6 and 7 should
be amended and substituted as follows:
1. Paragraph 5 should be amended as --
'To appoint Region or State Chief Minister,
the President of the State shall obtain from respective Region or State Hluttaw
the name of a suitable Hluttaw representative-elect who possess prescribed
qualifications'.
2. Paragraph 6 should be amended as --
'The President of the State shall appoint the
Hluttaw representative selected and sent from the respective Region or State
Hluttaw and approved by himself as respective Region or State Chief Minister.
3. Paragraph 7 should be amended as --
'The President shall have no authority to
revoke Hluttaw representative selected and sent from the respective Region or
State for appointing Chief Minister of the region or state unless he can
clearly prove want of qualifications prescribed for the Region or State Chief
Minister.
U Aung Thein
U Aung Thein, Hluttaw representative-elect of
Ywangan Constituency, Shan State, submitted the remaining part of the proposal
paper.
He said Head of State is the President of the
State and as he is the Head of State, Union Ministers, Deputy Ministers, region
or state Chief Minister and Minister are directly or indirectly responsible to
him.
[President should have right to fire Tatmadaw
Ministers]
Similarly, assigning of Tatmadaw servicemen
as Union Ministers and Deputy Ministers, prescribing ministries for them and
terminating them from duty should be carried out as in the ways for other Union
Ministers and Deputy Ministers, he said, adding Tatmadaw servicemen assigned
duties as region Ministers or state Ministers should also be the same as other
Ministers. If such matters are to be carried out after coordination with the
Commander-in-Chief of Defence Services, it would not be reasonable and it can
be a separate independent armed organization not related to the President of
the State and the Ministry of Defence, he commented and remarked that decision
of the Union Government and regional governments must be of prime importance if
it is in accordance with genuine democracy means.
So, regarding appointment of Tatmadaw
servicemen as Union Ministers and Deputy Ministers and Region or State
Ministers, he suggested that the phrase 'after coordination with the
Commander-in-Chief of Defence Services' should not be included in writing the
Constitution.
[Self-administered areas]
Regarding formation of self-administered
division or self-administered zone leading body, he also suggested that the
following be laid down as principles to serve as bases instead of Para 4 and 8,
as explained by the Work Committee Chairman:
1. to designate constituencies based on areas
of national races and sub-races;
2. in designating constituencies so, if the
total number of Region or State Hluttaw representatives elected from townships
in the respective self-administered division or self-administered zone and
representatives of national races is less than 10, more constituencies based on
population are to be added till the total number is 10;
3. to form self-administered division or
self-administered zone leading body with representatives of the constituencies,
Region or State Hluttaw representatives elected from townships and Tatmadaw
servicemen Hluttaw representatives.
[Local government]
Regarding district and township
administration, he said the following should be laid down as fundamental
principles:
1. to form district administrative body at
district level and township administrative body at township level with people's
representatives elected from respective constituencies and administrative duty
is to be assigned to them;
2. to distribute executive power to these
bodies as stipulated by the Constitution;
3. to prescribe the number of members of the
bodies and their responsibilities, rights and privileges by enactment of
separate law.
He said their discussions were based on some
points of the National Convention Convening Commission Chairman's explanation,
of which they had different opinions, and on a belief that a Constitution would
emerge as best for the State.
He said they would be happy if their
proposals would contribute to marching on a genuine democracy path.
U Tuang Kho Thang
U Tuang Kho Thang, an independent
representative-elect for Tamu Township Constituency, Sagaing Division, of
representatives-elect delegates group submitted his proposal paper on the
chapter "The Executive".
He said the government and its members would
have to be formed with only those elected by the people, the Attorney-General
and the Advocate-General should not include in the governments concerned.
So, governments should be formed as follows:
(a) Pyidaungsu government should be formed
with
(1) The President of the State,
(2) Vice-Presidents,
(3) Pyidaungsu Ministers,
(b) State government should be formed with
(a) region or state Chief Minister,
(b) region or state Ministers.
[Ministers should not have to resign Hluttaw
seats]
He said that in connection with appointing
Ministers in the Pyidaungsu Government, the President shall
(1) choose suitable Pyidaungsu Hluttaw
representatives having prescribed qualifications from among the Pyithu Hluttaw
representatives or Amyotha Hluttaw representatives. In so doing priority should
be given to electing one native Pyidaungsu Hluttaw representative from each
region and state,
(2) give priority to Tatmadaw servicemen
representatives out of Pyidaungsu Hluttaw representatives elected by the people
in choosing the Minister for Defence and the Minister for Border Affairs. The
Tatmadaw servicemen representatives thus assigned duties shall be deemed to
have resigned from the Tatmadaw once they have been elected as Hluttaw
representatives.
The Work Committee Chairman clarified that if
the President of the State, Pyidaungsu Ministers, the Attorney-General and
Deputy Attorney-General happened to be Hluttaw representatives they would have
to resign from being representatives of the respective Hluttaws.
It is understood their having to resign was
for separation of legislature and the executive so that administrative duties
could be carried out more dutifully.
Though it is easy to substitute a non-Hluttaw
representative or civil servant with a civil servant, it would not be easy to
replace an elected Hluttaw representative with another person. A bye-election
had to be held to elect a new Hluttaw representative.
Hence, with the exception of the President
post, Hluttaw representatives having to take over administrative duties should
not be made to resign from their being a hive duties should not be made to
resign from their being Hluttaw representatives.
If they are to be made to resign,
bye-elections should be held to elect new Hluttaw representatives.
[Local government]
It is believed the bureaucratic machinery
conforming to democratic bases and democratic norms is a machinery part that
contributes best to the people's democratic administration.
So, district and township level
administrative bodies should be formed with persons elected by the people.
In forming administrative bodies, the
chairman, vice-chairman and secretary should be those elected by the people and
the district deputy commissioner or township officer of the General
Administration Department would serve as joint secretary in the
district/township level administrative bodies to be formed.
[Adoption of the Constitution]
After the present constitution has been
written and approved, Pyithu Hluttaw would finalize the draft constitution
based on the basic principles formulated by the National Convention. The draft
constitution would then be passed through a referendum.
It is believed that then only would the
people's democratic administration be formulated enabling people's
participation.
If the State Constitution is to be drafted
based on misconceptions and suspicions towards one another it would not last
long though it may be good in form.
The constitution or the soul of the Union
should be written based on mutual trust and faithful to one's word or the
Panglong Spirit. In conclusion, he said if it is based on mutual trust and on
essence of democracy, an enduring constitution would emerge. (NLM 12/14)
Dec. 14: The Plenary Session of the National
Convention continued, with 517 of 590 delegates present. Proposal papers on the
Executive were presented by delegates from the representatives-elect [cont.]
and nationalities delegates groups [full texts]:
Representative-elect delegates
U Yaw Aye Hla of the representatives-elect
delegates group said that Pyidaungsu Hluttaw would have to choose a suitable
person from among the elected Hluttaw representatives to be appointed as
Pyidaungsu Attorney-General and nomination would be submitted to the President.
The President would have no right to reject the nomination except in the case
of his being disqualified for the Attorney-General. Pyidaungsu Hluttaw would
choose the Attorney-General who would thus be responsible to Pyidaungsu
Hluttaw.
[Advocates-General]
Similarly, region or state Hluttaw would have
to nominate an Advocate-General out of elected Hluttaw representatives and
submit the nomination to the President. The President would have no right to
reject the nomination except in the case of his being disqualified for the
Advocate-General. The region or state Advocate-General would be responsible to
the region or state Hluttaw.
The region or state Advocate-General would
assist the region or state Chief Minister in legal matters. He would have to
make sure that work done by the region or state governments is according to
law. He would provide legal protection to people of the respective states in
their damages and complaints. He should not be included in the region or state
government concerned.
[Civil Service Board]
The Auditor-General and formation of the
Union Civil Service Board are essential for a country. There is nothing to
suggest over the Auditor-General but some suggestions would be made over the
formation of the Union Civil Service Board. Progress or otherwise of a nation
depends directly on performance at different levels of the civil service
organizations. Effectiveness and dynamism of an administrative machinery is
linked to the performance of civil servants. Hence, every government should
provide opportunities for the life security and advancement of civil servants as
much as they exert their efforts. As steps are under way to march toward
multi-party democracy system in the country the civil service organizations
should be undertaking tasks dutifully for the government that would come to
power. The civil service organizations would always serve the country in spite
of changes in the government. They should be loyal to the nation and free from
party politics. People's representatives would make laws and the government
would enforce them with the help of civil servants. Civil servants would have
to play a vital role for the smooth running of the government's administrative
machinery.
[Region/State Government]
If the President chooses the Chief Ministers
of regions and states by himself it would amount to discarding the wishes of
the region or state Hluttaws. Residents of the regions and states would lose
their democratic rights. Essence of democracy would be reduced and it would
then be centralised. With no need to take into account of [sic] the wishes of
the region or state Hluttaws, the power of the President would grow unhindered.
In connection with secretary posts in the
region or state governments, he said Region/State General Administration
Department Commissioners should not serve as region or state government secretaries.
Instead, he said, the region or state Chief Minister should choose one from
among the region or state Hluttaw representatives and appoint him secretary.
Region or State General Administration Department heads being service personnel
should be responsible to the State governments and they should be assigned
duties for the smooth running of functions of the region or state governments.
Region or State General Administrative Departments should be region or state
government offices.
[Tatmadaw role]
Regarding Tatmadaw servicemen's role to be
played in national defence and security, he recalled cooperation between the
people and the Tatmadaw in struggles against colonialists and fascists,
repelling KMT forces and suppressing insurgents. Tasks would not achieve
success without people's cooperation nor last long, he said. The Tatmadaw was
born of the people. He said the Tatmadaw is the main bulwark in national
defence at the same time public support and cooperation should be taken into
account.
Hence, national defence and security
committees at various levels should be formed for the Tatmadaw and people's
representatives to cooperate in discharging defence, security and border
administration duties in the Pyidaungsu government, region or state governments
or self-administered district/zone leading bodies. Then only would the people
participate in defending the nation. Every citizen would then be duty bound to
defend the nation.
[Union territories]
In connection with Union territory, he said
he had nothing to suggest since a basic principle had already been laid down to
the effect that territories that have extraordinary security, administrative
and economic conditions are to be prescribed as Union territories and placed
under direct administration of the President.
He noted that his proposals were based on the
speech of the Work Committee Chairman given on 2 September 1994. He said he
suggested only points that did not concur with those in the speech.
[National Race delegates]
U Nyi Lay
U Nyi Lay of the national race delegates
group, delegate from Mohnyin Township, Kachin State, said detailed principles
should be laid down as follows:
1. The executive head of the State is the
President of the State;
2. (a) The executive power of the State is
distributed among the Union, Regions and States;
(b) Self-administration powers are delegated
to self-administered areas as prescribed by the Constitution;
3. The Union government shall be set up with
the following persons:
(a) President of the State
(b) Vice-Presidents
(c) Union Ministers
(d) Attorney-General of the Union
4. The President of the State may
(a) prescribe Union ministries as necessary,
make changes or additions thereto;
(b) prescribe the number of Union ministers
as necessary, and increase or decrease the number;
5. Union ministers must possess the following
qualifications:
(a) they must be at least fully 40 years of
age;
(b) they must have qualifications prescribed
for Pyithu Hluttaw members except the qualification of age;
(c) they must be loyal to the State and the
citizenry.
In appointing Union ministers, the President
should do so only after seeking the approval of Pyidaungsu Hluttaw.
The following principles should be laid down
to appoint Union ministers:
1. The President shall
(a) choose suitable and qualified persons
from among Hluttaw members as well as non-members for appointment as Union
ministers;
(b) get nominations from the
Commander-in-Chief of the Defence Services for appointment of Union ministers
for defence, security, home affairs and border affairs.
2. The President is to present these
nominations to Pyidaungsu Hluttaw for approval;
3. Pyidaungsu Hluttaw shall not have the
right to turn down the nominations for Union ministers unless it can show clear
proof of any wanting in qualifications;
4. If the Pyidaungsu Hluttaw turns down any
nomination, the President shall have the right to make nominations anew and
seek the approval of the Pyidaungsu Hluttaw;
5. The President is to appoint approved
nominees as Union ministers and assign a ministry or ministries to each of the
Union ministers;
6. If the President deems it necessary to
appoint Tatmadaw members as Union ministers other than those for defence,
security, home affairs and border affairs he shall proceed in coordination with
the Commander-in-Chief of the Defence Services;
7. The President shall report to the
Pyidaungsu Hluttaw every time it [sic] makes an appointment of Union ministers;
8. The Union ministers shall be directly
responsible to the President.
The President of the State is to choose a
qualified and suitable person as Attorney-General to give legal advice.
The President of the State is to choose a
qualified and suitable person as Auditor-General to examine accounts of
government organizations and report to Hluttaws concerned.
Union Civil Service Board is to be formed to
undertake selection, training and regulation of service personnel of stipulated
grade of the civil service organizations. It should be a body formed by the
Constitution.
U Tint Aung
U Tint Aung of the same group, delegate from
Pyu Township, Bago Division, said detailed principles should be laid down as
follows:
1. Region government shall be formed in
Region; State government shall be formed in State;
2. Region or State government shall be formed
with the following:
(a) Chief Minister of Region or State;
(b) Ministers of Region or State;
(c) Advocate-General of Region or State.
3. The President of the State may
(a) prescribe Region or State ministries as
necessary, make changes or additions thereto;
(b) prescribe the number of Region or State
ministers as necessary, and increase or decrease the number;
4. Region or State chief minister and
ministers must possess the following qualifications:
(a) they must be at least fully 35 years of
age;
(b) they must have qualifications prescribed
for Region or State Hluttaw representatives except the qualification of age;
(c) they must be loyal to the State and the
citizenry.
5. To appoint as chief minister of Region or
State, the President of the State shall
(a) choose a qualified and suitable one from
among Region or State Hluttaw members
(b) present the nomination to the Region or
State Hluttaw.
6. The President of the State shall appoint
the Region or State Hluttaw member approved by the Region or State Hluttaw as
the chief minister of Region or State.
7. Region or State Hluttaw shall have no
right to turn down anyone in the nomination of the President of the Union if it
cannot show clear proof of any wanting in qualifications.
U Maung Maung Ko
U Maung Maung Ko of the same group read the
last part of the proposal paper.
[Self-administered area, Region/State, Union
territory, & local government]
Self-administered divisions and
self-administered zones need administrative bodies; they should be called
self-administered division leading body (Oo-zi Aphwe) and self-administered
zone oozi aphwe.
It has been laid down for areas with special
conditions in State defence, security, administrative and economic aspects to
prescribed as Union territory and placed under direct administration of the
President of the State; it has also been laid down that Yangon City is to be
prescribed as such and placed under direct administration of the President of
the State.
At district and township level,
administrative work should be carried on by service organizations of district
administrative officers and township administrative officers.
At the district level, along with the
district administrative officer, Tatmadaw members assigned by the
Commander-in-Chief of the Defence Services will participate as necessary in
duties of maintaining law and order and community peace and tranquillity.
The ward and village-tract level is one with
greatest contact with the people; so administration at this level should be
entrusted to ward or village-tract administrators elected by the people. Their
election, duties and rights should be prescribed by separate law.
He said the proposal paper just presented
contained points agreed on by all in the group; there were also proposals made
in addition to that by individual delegates; it is not a submission of
proposals other than those agreed on by all, but just additions; he went on to
submit them as part of the group's proposal paper.
[Additional suggestions by individual
national races delegates]
Kachin State national race delegates
suggested that the chief minister of Region or State, instead of being chosen
and appointed directly by the President of the State, should be elected by
majority vote among Region or State Hluttaw members, and submitted to the
President of the State for confirmation; they also suggested that there should
be re-formation of some townships in Region or State that do not even have 0.1
per cent population.
Chin State delegates suggested districts,
townships, village-tracts and wards be extensively reorganized for smoothness
of regional administration and for flourishing of transport, economy and social
affairs. In formation of the Union Government, he said, a Union Minister each
and a Deputy Minister each should be appointed from among Hluttaw
representatives elected from national races and non-Hluttaw representatives. A
member each from among national races is to be included in formation of the
Union Civil Service Board. A Hluttaw representative approved of their own will
after coordination among themselves is to be selected as Chief Minister of the
respective region or state who is to be appointed by the President of the
State. It is appropriate to appoint suitable representative of the region or
state Hluttaw representatives as the secretary of the respective region or
state government. In district and township level administrations, a body
including people's representatives should be formed for security, rule of law
and community peace and tranquillity, he suggested.
Delegates of Mon State and Yangon Division
suggested age limits of people's representatives, Union Minister and Deputy
Minister and Region or State Chief Minister and Ministers should be revised. He
said prescribing of age limits is in consideration of experience and maturity.
He spoke of experience, knowledge, patriotism and loyalty to the State and
people are qualifications essential for persons who are to rule the nation and said
some experienced, educated persons were less loyal to the State in history. He
said some persons, despite their experience and maturity, were minions of
colonialism while Bogyoke Aung San, before attaining 33 years of age, was a
national leader. It dow not mean there should not be age limits; necessary age
limits must be prescribed for the posts of Chief Justice, the Attorney-General
and the Auditor-General who should have necessary technical qualifications, he
said, giving a reason a person cannot be a legal expert or experienced
statistician at 25.
National races delegates of Shan State desire
the kind of administrative system at district and township levels in which only
people's representatives, born of parents both of whom are nationals, must be
included. They want privileges in addition to responsibilities and rights of
elected ward or village-tract administrator to be prescribed by enactment of a
separate law because they view that difficulties would occur in marching toward
the aspired democracy State if British colonialists' bureaucracy administrative
system were to be revived.
Delegates of Ayeyawady Division suggested a
law and necessary rules be enacted when a State Constitution emerges for
provision of a regional democracy administrative system, which will
expeditiously and effectively bring about welfare of the people in accordance
with common desire.
U Kum Je Tawng of Myitkyina Township, Kachin
State, is of the view that a law should be enacted for all national races in
the respective region or state to have an opportunity of being able to
discharge duties as head of the region or state. Necessary measures should be
taken for appointing a Deputy Chief Minister along with the Region or State
Chief Minister and only would prospects be directed toward bringing about an
opportunity for national races to be able to discharge alternately duties as
head of respective region or state, undertaking of administrative, security,
economic, development and social tasks without losing momentum and unity, mutual
respect and cooperation and satisfaction in undertaking duties [sic].
He said these proposals were put forward for
consideration of the National Convention and the national races delegates group
would respect decisions of the Convention.
He quoted the address of the National
Convention Convening Commission Chairman Lt-Gen. Myo Nyunt at the Plenary
Session on 18-1-94 as saying "In connection with the executive system of
the State, to mention some significant points worthy of note, it must be observed
that today, unlike in the past, communications and transportation are advancing
extremely rapidly in the world. All over the world, in political, economic,
social and military spheres, things are happening, changing, at a fast pace, by
the minute, by the hour. In order to protect the interest of one's nation, an
active and dynamic executive machinery is truly needed for protecting our own
national interests in accord with the changes in the international spheres.
Specially, the future administrative system needs to be advanced and dynamic
for perpetuating national sovereignty, safeguarding integrity of territorial
land, sea and air space and preventing any harm to national interest and
national integrity."
In accordance with the Commission Chairman's
address, efforts are directed toward emergence of a Constitution which is in
resonance with the six objectives of the National Convention, he said in
conclusion. (NLM 12/15)
Plenary Session--Judiciary
Dec. 15: The Plenary Session of the National
Convention continued, with 513 of 590 delegates present. Proposal papers on the
Judiciary were presented by the Peasant, Worker, Intellectuals and
intelligentsia, and State service personnel delegates groups [full texts of
"salient points" as published in NLM]:
Peasant delegates group
U Kyaw Nyein, delegate from Kalaw Township,
Shan State, from the peasant delegates group said he would present the first
part of the group's paper on "The Judiciary" to be included in the
State Constitution.
He said correct and fair administration of
justice in the country would win public reliance and confidence in the State
and then lead to people's progress. In other words, administration of justice
and the rule of law are basic requirements for peace and stability and
modernity and development of the nation. One of the six objectives of the
National Convention is "further flourishing of noblest and worthiest of
worldly values namely justice, liberty and equality in the State."
He said basic principles should be laid down
in connection with distribution of judicial powers to civil courts, military
courts and constitutional tribunal.
[Union courts]
As basic principles have already been laid
down, the Pyidaungsu (Union) Hluttaw is concerned with the whole of the Union.
Moreover, it is responsible for supervision of different levels of civil
courts. Hence the name of the Union Hluttaw should be called "Pyidaungsu
Taya Hluttaw-chok" (Supreme Court of the Union).
So, detailed basic principles should be laid
down in connection with distribution of judicial powers as follows:
Judicial powers of the State shall be
distributed as follows:
(a) Supreme Court of the Union,
High Courts of the Regions,
High Courts of the States,
Courts of the Self-Administered Divisions,
Courts of the Self-Administered Zones,
District Courts,
Township Courts,
courts established according to law and
judges appointed according to law, under provisions of the State Constitution
or other laws,
(b) Courts-martial under provisions of the
State Constitution or other laws,
(c) Constitutional Tribunal under the
provisions of the State Constitution.
In laying down basic principles in connection
with appointment of Union judges, the President of the State should nominate
them in consultation with the Union (Supreme Court of the Union) Chief Justice,
and appoint them as Union judges with the approval of the Pyidaungsu Hluttaw.
Hence, basic principles should be laid down
on the formation of courts at different levels as follows:
1. in the State is constituted one Supreme
Court of the Union, the Supreme Court of the Union is the supreme law court of
the State which shall not affect judicial powers vested in the Constitutional
Tribunal and courts-martial.
2. (a) the Head of the Supreme Court of the
Union shall be called Chief Justice of the Union,
(b) minimum number of seven to maximum number
of 11 Supreme Court judges including the Chief Justice of the Union shall be
appointed,
3. (a) the President shall appoint the person
nominated by him and approved by the Pyidaungsu Hluttaw the Chief Justice of
the Union,
(b) the Pyidaungsu Hluttaw shall not have the
right to reject the person nominated by the President for appointment of the
Chief Justice of the Union unless it can show clear proof of any wanting of
qualifications prescribed in the Constitution,
4 (a) the President shall compile a list of
nominees in coordination with the Chief Justice of the Union for submitting it
to the Pyidaungsu Hluttaw and appoint the person approved by the Pyidaungsu
Hluttaw as a judge of the Supreme Court,
(b) The Pyidaungsu Hluttaw shall not have the
right to reject a person in the list nominated by the President for appointment
of a judge of the Supreme Court unless it can show clear proof of any wanting
in qualifications prescribed in the Constitution.
U Kyi Tint
U Kyi Tint of peasant delegates group of
Danubyu Township, Ayeyawady Division, submitted the remaining part of the
paper.
[Region or State courts]
Regarding administration of justice, he
suggested the already adopted fundamental principle 'a region Taya Hluttaw
(Region High Court) is constituted in each of the states' should be provided in
the chapter the Judiciary.
So. regarding the matters, the following
should be laid down as detailed principles to serve as bases:
1. There shall be one High Court of the
Region in each region and one High Court of the State in each state.
2. (a) The head of the High Court of the
Region in respective regions and the head of the High Court of the State in
respective states shall be called Chief Justice of the Region or Chief Justice
of the State respectively;
(b) At least three and maximum seven Judges
of the High Court of the Region or Judges of the High Court of the State
including Chief Justice of the High Court of the Region or State can be
appointed to the High Court of the Region or High Court of the State.
3. (a) The President of the State is to
compile a nomination list for the appointment of the Chief Justice of the High
Court of a Region or a State and a nomination list for the appointment of
Judges of the High Court of the Region or the State, in consultation with the
Chief Justice of the Union and the Chief Minister of the Region or State
concerned, and send them to the Region or State Hluttaws concerned;
(b) The President of the State shall appoint
persons approved by the respective Region or State Hluttaws as the Chief
Justice of the High Court of the Region or State and as Judges of the High
Court of the Region or State for the respective regions and states;
(c) A region Hluttaw or a state Hluttaw shall
have no right to reject nominees of the President of the State for the
appointment of the Chief Justice of the High Court of the Region or the State
and nominees for the appointment of Judges of the High Court of the Region or
the State unless it can show clear proof of want of qualifications prescribed
for the Chief Justice of the Region or the State or Judges of the High Court of
the Region or the State.
[Lower courts]
Regarding formation of various levels of
courts under the High Court of the region or state, the following should be
laid down as principles to serve as bases:
(a) if there is no self-administered area in
the region or state
(1) district courts
(2) township courts
(b) if there is a self-administered area in the
region or state
(1) In the self-administered division
(aa) court of the self-administered division
(bb) township courts
(2) In the self-administered zone
(aa) court of the self-administered zone
(bb) township courts
(3) In other areas
(aa) district courts
(bb) township courts
(c) in Union territory
(1) district courts
(2) township courts
(d) other courts set up by law.
He said the address of the State Law and
Order Restoration Council Secretary-1 Lt-Gen. Khin Nyunt at a work coordination
meeting of state, division and district-level judges and district-level judges
and state and district-level law officers on 22 August 1994 clearly spotlighted
aspects of the present system of one-judge administration of justice and spoke
of the weaknesses of the system. He quoted the Secretary-1 as saying,
"Decisions of courts of origin, had to be revised in many cases;
punishments were meted out for 85.2 per cent of cases already completed with
acquittals in the period from 1-5-93 to 30-6-94; for these irregularities,
action has been taken against 434 judges and judicial personnel and even then
there has been no effectiveness."
He attributed this to vesting of the judicial
power only in one judge.
[Joint judge/people justice]
The present Constitution is to be written to
be as best and appropriate as possible, with a long-term interest of the people
taken into consideration and lessons drawn from the past and the present, he
noted. He said it would not be sufficient to appoint a single legal expert,
judge, as civilian personnel and power is vested in him in all courts except
the Pyidaungsu Taya Hluttawgyok (Supreme Court of the Union) and region or
state Taya Hluttaw (region or state High Court). He pointed out that township
and district levels are in close contact with people and if judicial power is
vested in only one civil personnel, there will be misuse of power for
self-interest.
So, he said, a suitable system of
administration of justice for the future democracy State in district and
township levels should be administration of justice by the legal expert, judge,
jointly with the people, adding it is time to adopt a system of administering
justice by joint undertaking.
He said peasant delegates believe in all
seriousness that putting forward fine suggestions to the National Convention
for emergence of an enduring Constitution, having welfare of the future
democracy State in view, is discharging a national duty.
He said the delegate group would continue to
submit good suggestions, based on 104 fundamental principles already laid down
and in conformity with the six objectives of the National Convention.
Worker delegates group
U Khin Maung Swe of worker delegates group,
delegate from Hline Township, said detailed principles should be laid down as
follows:
Judicial powers of the State are distributed
as follows
(a) by the Constitution or by other law, to
the Supreme Court of the Union, High Courts of the Region, High Courts of the
State, courts of self-administered division, courts of self-administered zone,
district courts, township courts and other courts established by law, and
judges appointed in accord with law;
(b) by the Constitution or by other law, to
the courts-martial;
(c) by the Constitution, to the
Constitutional Tribunal.
[Union courts]
Detailed principles should be laid down also
as follows:
1. There shall be established a State
Constitution of the Union; without infringing upon the powers of the
Constitutional Tribunal and the courts-martial, the Supreme Court of the Union
is the highest court of law of the State.
2. (a) The head of the Supreme Court of the
Union shall be called Chief Justice of the Union;
(b) In the Supreme Court of the Union, there
may be appointed a minimum of seven and a maximum of eleven judges of the
Supreme Court, inclusive of the Chief Justice of the Union.
3. (a) The person nominated by the President
of the State and approved by the Pyidaungsu Hluttaw shall be appointed Chief
Justice of the Union by the President of the State;
(b) The Pyidaungsu Hluttaw shall have no
right to turn down the nomination for the Chief Justice of the Union presented
by the President of the State, unless it has clear proof of any wanting in
qualifications prescribed by the Constitution.
4. (a) Persons nominated by the President of
the State in consultation with the Chief Justice of the Union, and approved by
the Pyidaungsu Hluttaw shall be appointed judges of the Supreme Court by the
President of the State;
(b) The Pyidaungsu Hluttaw shall have no
right to turn down the nomination for the judges of the Supreme Court presented
by the President of the State, unless it has clear proof of any wanting in
qualifications prescribed in the Constitution.
[Qualifications]
He said persons exercising judicial powers
must be free of unfairness due to one's own wish, anger, fear or ignorance;
judges of the Union should be free of party politics and should not be Hluttaw
members; so detailed principles should be laid down as follows:
The Chief Justice of the Union and judges of
the Supreme Court shall have the following qualifications:
(a) they shall be not younger than 50 and not
older than 70 years of age;
(b) they shall have qualifications required
of Pyithu Hluttaw members, except that for stipulation of age;
(c) (1) they shall have served at least five
years as judges of the High Court of the Region or State (or)
(2) if they are judicial or law service
personnel, they must have served at least ten years at a post not lower than
Region or State level (or)
(3) they must have been handling cases at
least 20 years as an advocate (or)
(4) persons deemed by the President of the
State as law experts of high reputation;
(d) they must be loyal to the State and the
citizenry;
(e) they must not be members of any political
party;
(f) they must not be members of Hluttaw.
[Termination]
He also proposed the following detailed
principles:
If a chief justice of the Union or a judge of
the Supreme Court commits the following, the President of the State may order
that person to resign or terminate that person's performance of duties:
(a) a breach of allegiance to the State;
(b) violation of provisions of the
Constitution;
(c) moral turpitude;
(d) loss of qualifications required of the
chief justice of the Union or judge of the Supreme Court as prescribed in the
Constitution. (NLM 12/16)
Worker delegates group [cont.]
U Kyaw Nyunt (a) U Nyunt Lwin of the worker
delegates group, of Loikaw Township, Kayah State, said the following should
detailed principles should be laid down:
1. The chief justice or a judge of the high
court of the Region or State may be impeached for commitment of the following:
(a) breach of allegiance to the State;
(b) violation of provisions of the
Constitution;
(c) moral turpitude;
(d) loss of qualifications required of the
chief justice or judge of the high court of the Region or State as prescribed
in the Constitution.
2. A motion to impeach the chief justice or a
judge of the high court of the Region or State shall be signed by at least
three fourths of the total number of Region or State Hluttaw members and
submitted to the chairman of the Region or State Hluttaw.
3. The chairman of the Region or State
Hluttaw shall have the accusations investigated by an inquiry committee,
stipulating the time allowed for inquiry depending on the volume of work to be
carried out in the inquiry.
4. In the inquiry, the person accused shall
be given right of defence in person or through a representative.
5. If the inquiry committee submits it finds
the accusations are right, the chairman of the Region or State Hluttaw is to
report to the Region or State Hluttaw; if two thirds of the total number of
Region or State Hluttaw members decide that the accusations are right and the
accused person should not continue to serve as chief justice or judge of the
high court of Region or State, the chairman of the Hluttaw is to report it to
the President of the State.
6. Thereupon, the President of the State
shall terminate the performance of duties of that person as chief justice or
judge of the high court of the Region or State.
7. If the Region or State Hluttaw decides the
accusations are not right, it shall be so reported by the chairman of the
Hluttaw to the President of the State.
[Urgent need for legal ethics]
At present, he said, there were seen acts
that marred administration of justice and judges were persons most responsible
to keep the pillar of justice upright; it was important that they refrained
from using for their own personal gain the powers conferred by the State; they
must try to make the court a place of congregation by persons of integrity, or
whom the people relied to help prevent loss to the people by law; judges have
responsibility to abide by laws, rules and regulations, while upholding their
own personal integrity and staying free of any wrongdoing or corruption; forces
on the side of law in seeking the truth, such as law officers, lawyers and
prosecuting organizations too have to perform their duties and exercise their
rights with honesty and sincerity; lawyers should avoid striving only to win
their cases without regard to truth; only when there is righteousness,
fairness, and consideration will there flourish a righteous and fair judicial
system; only then will the country prosper, and the people have confidence in
and love the government and personnel in the service of the State.
He said their group had presented proposals
and the National Convention could coordinate and deliberate on them in accord
with the will of the majority.
Intellectuals and intelligentsia delegates
U Ye Dwe, delegate of the intellectuals and
intelligentsia delegates group, submitted the proposal paper of the group on
the chapter "The Judiciary".
He said clarifications of Chairman of the
National Convention Convening Work Committee highlighted the courts at
different levels to be established in future. They are found to be in
conformity with the form of the future administrative machinery. Hence, points
clarified by the Work Committee Chairman should be laid down as basic principles.
The Supreme Court of the Union is the supreme
law court of the State which shall not affect judicial powers vested in the
Constitutional Tribunal and courts-martial. It would have to supervise the
functions of Region or State High Courts and courts under their charge.
Criminal cases occurred in the Region, States and self-administered divisions
are to be sent to the Region or State High Courts. Only cases not satisfied
with the decisions of these courts would be sent to the Supreme Court of the
Union. So, it is appropriate to constitute the Supreme Court of the Union with
a minimum number of seven to a maximum number of 11 Supreme Court Judges
including the Chief Justice of the Union to cope with the high volume of work.
In connection with appointment of the Chief
Justice of the Union, it had been clarified that the President shall appoint
the person nominated by him and approved by the Pyidaungsu Hluttaw the Chief
Justice of the Union, and that the President shall compile a list of nominees
in consultation with the Chief Justice of the Union for submitting it to the
Pyidaungsu Hluttaw and appoint the person approved by the Pyidaungsu Hluttaw a
judge of the Supreme Court of the Union. Since it is most appropriate it should
be laid down as basic principle.
Similarly in the case of appointing the Chief
Justice and judges of the High Court of a Region or State, it had been
clarified the President shall nominate the Chief Justice and judges of the High
Court of a Region or State in consultation with the Chief Justice of the High
Court of the Region or State concerned with the approval of the Region or State
Hluttaw concerned. This should also be laid down as basic principle.
["Good reputation" better than
"high reputation"]
Regarding qualifications to be prescribed for
Chief Justice and judges of the Supreme Court of the Union and Chief Justice
and judges of the High Court of a Region or State, the Work Committee Chairman
clarified "persons deemed by the President as law experts of high
reputation". Instead it should be "deemed by the President as law
experts of good reputation". It would then carry more meaningful essence
and their qualities of being good and able persons become more evident. So, it
is suggested to take into account of this point.
Truly, judges should be free from party
politics and they should not be Hluttaw representatives. Then only would they
be prevented from misusing judicial powers.
[Qualifications of Region or State Judges]
As regards prescribing qualifications for
Chief Justice and judges of the Region or State High Court concerned, basic
principles should be laid down that
-- Chief Justice of the Region or State High
Court shall have the following qualifications:
(a) they shall be not younger than 45 years
and not older than 65 years of age,
(b) they shall have qualifications required
of Region or State Hluttaw members, except that for stipulation of age;
(c) (1) If they are judicial or law officers,
they must have served at least five years at a post not lower than region or
state level or at least 10 years at a post not lower than district level (or)
(2) they must have handled cases for 15 years
as an advocate (or)
(3) deemed by the President as law experts of
good reputation,
(4) they must be loyal to the State and the
citizenry,
(5) they must not be members of any political
party,
(6) they must not be members of Hluttaw.
In conclusion, he said the intellectuals and
intelligentsia delegates group had just submitted slight changes to be made in
the clarifications of the Work Committee Chairman after thorough study and deep
consideration. He said he hoped the points would be given due attention.
[State service personnel delegates]
Col. Aung San
Col. Aung San of State service personnel
delegates group submitted a proposal paper compiled by the group on the chapter
The Judiciary.
He said the following should be laid down as
detailed principles to serve as bases concerning the distribution of judicial
power of the State:
-- The judicial power of the State is
distributed
(a) in accordance with the Constitution or by
other laws among Pyidaungsu Taya Hluttawgyoke (Supreme Court of the Union),
region Taya Hluttaws (High Courts of the States, courts of the
self-administered divisions, courts of the self-administered zones, district
courts, township courts, other courts constituted by law and judges appointed
in accordance with law;
(b) in accordance with the Constitution or by
other laws, among courts-martial, and
(c) in accordance with the Constitution, to
the Constitutional Tribunal.
Regarding the appointment of Pyidaungsu Taya
Thugyigyoke (Chief Justice of the Union), he said the President of the State,
the head of State, should appoint the Chief Justice with the approval of the
legislative body Pyidaungsu Hluttaw (Union Hluttaw). It should be provided in
the Constitution when the Union Hluttaw may reject any of the persons in a list
nominated by the President of the State and this conveys the manner of
reciprocal check, control and balance between the President and the Hluttaw,
the legislative body.
Similarly, he said, the President of the
State should compile a list of names in consultation with the Chief Justice of
the Union and appoint Pyidaungsu Taya Thugyimyar (Judges of the Supreme Court)
with the approval of the Union Hluttaw. It should be provided in the
Constitution when the Union Hluttaw may reject nominees of the President of the
State.
Regarding appointment of the Chief Justice of
the Union and Judges of the Supreme Court, their qualifications should be
prescribed, he said. The person to be appointed to the post at the highest
court of the State must have qualifications such as loyalty to the State,
adherence to the laws in accordance with the Constitution, having experience in
judicial duties, having personal integrity and being within the age limit and
having other qualities to be able to carry out his tasks dutifully.
Judges must not only be a test stone [sic] in
terms of loyalty to the State they must also be persons born of parents both of
whom are nationals, he noted and said that except for age limit, they must
possess qualifications prescribed for Pyithu Hluttaw representatives, being
free of party politics and must not be Hluttaw representatives.
He said the National Convention Convening
Work Committee Chairman had thoroughly dealt with qualifications of Chief
Justice of the Union and Judges of the Supreme Court and expressed support to
the point '...have been an advocate of the Taya Hluttaw (High Court) of at
least 20 years' standing'. In prescribing so, posts and period of discharging
judicial duties should also be included.
Military servicemen serving in the posts
discharging judicial duties in the Tatmadaw and civil personnel serving in the
posts in the judicial organizations are found to be of same nature of work, and
similar provision is also found in Section 142 Sub-section 3 of the 1947
Constitution, he said. He proposed that in prescribing as a qualification
'...have been an advocate of the Taya Hluttaw (High Court) of at least 20
years' standing' for the Chief Justice of the Union and Judges of the Supreme
Court, periods in which he has discharged judicial duties should be included.
[75 age limit instead of 70]
He said the proposed age limits for the Chief
Justice of the Union and Judges of the Supreme Court are found to be 50 years
for the youngest age and 70 years for the oldest age and proposed the maximum
age be prescribed as 75, citing a reason that the Chief Justice and Judges of
the High Court of the region or state, not younger than 45 years and not older
than 65 years, who will have had experiences in the post, will have only scant
opportunity to be able to go on to discharge duties as the Chief Justice of the
Union or Judges of the Supreme Court.
So, he suggested, it should be provided in
para (a) of prescribing qualifas to be able to protect fundamental rights and
privileges of the citizens, he commented.
He proposed that Union Government or region
or state governments be formed as follows:
1. Union Government is to be formed with--
(a) President of the State
(b) Vice-Presidents
(c) Union Ministers;
2. Region or state government is to be formed
with--
(a) region or state Chief Minister
(b) region or state Ministers
If a review is made of a fundamental
principle as 'the President of the State shall possess specific qualifications
required of the President in addition to qualifications required to stand for
election to the Hluttaw' will reveal qualifications of a Hluttaw
representative, he said.
[Ministers from each region or state]
So, he said, priority should be given in
appointing Union Ministers to selecting from among the Hluttaw representatives
and a Union Minister is to be appointed from each of the regions and states.
The Ministerial position above that is also to be selected from among Hluttaw
representatives and Union Minister should be selected from among prestigious
persons of intellectuals and intelligentsia and State service personnel, if
they possess qualifications prescribed for Hluttaw representatives.
[Self-administered areas]
He quoted Work Committee Chairman's address
on 2-9-94 as saying that to be able to appoint chairman of the
self-administered division or self-administered zone leading body, a suitable
person should be selected from among Hluttaw representatives after coordination
between members of the respective leading body. If the right to select
respective head independently of their own will is given to members of the
self-administered areas, region or state Chief Minister should also be selected
and appointed according to common desire after coordination between
representatives of the respective region or state Hluttaw, he said, adding it
would not only be conformity with democratic practices but also be appropriate
if the President is to appoint the person selected as region or state Chief
Minister and this will contribute to flourishing of multi-party democracy
system.
[Region/State governments]
Regarding appointment and assignment of
duties to region or state Chief Minister as explained by the National
Convention Convening Work Committee Chairman, he said, paras 5, 6 and 7 should
be amended and substituted as follows:
1. Paragraph 5 should be amended as --
'To appoint Region or State Chief Minister,
the President of the State shall obtain from respective Region or State Hluttaw
the name of a suitable Hluttaw representative-elect who possess prescribed
qualifications'.
2. Paragraph 6 should be amended as --
'The President of the State shall appoint the
Hluttaw representative selected and sent from the respective Region or State
Hluttaw and approved by himself as respective Region or State Chief Minister.
3. Paragraph 7 should be amended as --
'The President shall have no authority to
revoke Hluttaw representative selected and sent from the respective Region or
State for appointing Chief Minister of the region or state unless he can
clearly prove want of qualifications prescribed for the Region or State Chief
Minister.
U Aung Thein
U Aung Thein, Hluttaw representative-elect of
Ywangan Constituency, Shan State, submitted the remaining part of the proposal
paper.
He said Head of State is the President of the
State and as he is the Head of State, Union Ministers, Deputy Ministers, region
or state Chief Minister and Minister are directly or indirectly responsible to
him.
[President should have right to fire Tatmadaw
Ministers]
Similarly, assigning of Tatmadaw servicemen
as Union Ministers and Deputy Ministers, prescribing ministries for them and
terminating them from duty should be carried out as in the ways for other Union
Ministers and Deputy Ministers, he said, adding Tatmadaw servicemen assigned
duties as region Ministers or state Ministers should also be the same as other
Ministers. If such matters are to be carried out after coordination with the
Commander-in-Chief of Defence Services, it would not be reasonable and it can
be a separate independent armed organization not related to the President of
the State and the Ministry of Defence, he commented and remarked that decision
of the Union Government and regional governments must be of prime importance if
it is in accordance with genuine democracy means.
So, regarding appointment of Tatmadaw
servicemen as Union Ministers and Deputy Ministers and Region or State
Ministers, he suggested that the phrase 'after coordination with the
Commander-in-Chief of Defence Services' should not be included in writing the
Constitution.
[Self-administered areas]
Regarding formation of self-administered
division or self-administered zone leading body, he also suggested that the
following be laid down as principles to serve as bases instead of Para 4 and 8,
as explained by the Work Committee Chairman:
1. to designate constituencies based on areas
of national races and sub-races;
2. in designating constituencies so, if the
total number of Region or State Hluttaw representatives elected from townships
in the respective self-administered division or self-administered zone and
representatives of national races is less than 10, more constituencies based on
population are to be added till the total number is 10;
3. to form self-administered division or
self-administered zone leading body with representatives of the constituencies,
Region or State Hluttaw representatives elected from townships and Tatmadaw
servicemen Hluttaw representatives.
[Local government]
Regarding district and township
administration, he said the following should be laid down as fundamental
principles:
1. to form district administrative body at
district level and township administrative body at township level with people's
representatives elected from respective constituencies and administrative duty
is to be assigned to them;
2. to distribute executive power to these
bodies as stipulated by the Constitution;
3. to prescribe the number of members of the
bodies and their responsibilities, rights and privileges by enactment of
separate law.
He said their discussions were based on some
points of the National Convention Convening Commission Chairman's explanation,
of which they had different opinions, and on a belief that a Constitution would
emerge as best for the State.
He said they would be happy if their
proposals would contribute to marching on a genuine democracy path.
U Tuang Kho Thang
U Tuang Kho Thang, an independent
representative-elect for Tamu Township Constituency, Sagaing Division, of
representatives-elect delegates group submitted his proposal paper on the
chapter "The Executive".
He said the government and its members would
have to be formed with only those elected by the people, the Attorney-General
and the Advocate-General should not include in the governments concerned.
So, governments should be formed as follows:
(a) Pyidaungsu government should be formed
with
(1) The President of the State,
(2) Vice-Presidents,
(3) Pyidaungsu Ministers,
(b) State government should be formed with
(a) region or state Chief Minister,
(b) region or state Ministers.
[Ministers should not have to resign Hluttaw
seats]
He said that in connection with appointing
Ministers in the Pyidaungsu Government, the President shall
(1) choose suitable Pyidaungsu Hluttaw
representatives having prescribed qualifications from among the Pyithu Hluttaw
representatives or Amyotha Hluttaw representatives. In so doing priority should
be given to electing one native Pyidaungsu Hluttaw representative from each
region and state,
(2) give priority to Tatmadaw servicemen
representatives out of Pyidaungsu Hluttaw representatives elected by the people
in choosing the Minister for Defence and the Minister for Border Affairs. The
Tatmadaw servicemen representatives thus assigned duties shall be deemed to
have resigned from the Tatmadaw once they have been elected as Hluttaw
representatives.
The Work Committee Chairman clarified that if
the President of the State, Pyidaungsu Ministers, the Attorney-General and
Deputy Attorney-General happened to be Hluttaw representatives they would have
to resign from being representatives of the respective Hluttaws.
It is understood their having to resign was
for separation of legislature and the executive so that administrative duties
could be carried out more dutifully.
Though it is easy to substitute a non-Hluttaw
representative or civil servant with a civil servant, it would not be easy to
replace tional Convention continued, with 515 of 590 delegates present.
Proposal papers on the Judiciary were presented by the Other Invited Persons
delegates group, and by several parties in the Political parties delegates
group.
[Other Invited Persons delegates group]
Dr. Maung Maung Sein, Medical Superintendent
of the Psychiatric Hospital (Retd), delegate of the other invited person
delegates group, submitted the group's proposal on the chapter "The
Judiciary".
He said the group had noted specific points
contained in the address of the National Convention Convening Commission
Chairman delivered on 2 September 1994 stressing the need to make relevant
changes in social, administrative and other fields from the base in conformity
with political and economic changes taking place in the country, and that a new
constitution is essential. The group discussed and coordinated points in
connection with the formation of the chapter "The Judiciary" from 18
October 1994 to 20 January 1995 after a thorough study of the clarifications of
the Work Committee Chairman.
He said delegates of the group compiled
papers of their own in earnest numbering 20 and discussed them. All believed
basic principles suggested in this collectively compiled proposal paper would
be essential one for the formation of the chapter "The Judiciary".
Emphasizing the importance of the Judiciary
in nation-building process, he said the nation would be strong if the judiciary
is firmly based. Every citizen, regardless of their race or religion, should be
equal before the law. The judiciary pillar would have to do its best to provide
justice for every citizen, he said.
He added that the judiciary pillar should be
dependable for progress and life security of every citizen. Hence, the
judiciary in the constitution of the State should be formed in most specific
terms, he said.
He then suggested the following in connection
with distribution of judicial powers.
-- judicial powers of the State shall be
distributed as follows:
(a) Supreme Court of the Union,
High Courts of the Regions,
High Courts of the States,
Courts of the Self-Administered Divisions,
Courts of the Self-Administered Zones,
District Courts,
Township Courts,
courts established according to law and
judges appointed according to law, under provisions of the State Constitution
or other laws,
(b) Courts-martial under provisions of the
State Constitution or other laws,
(c) Constitutional Tribunal under the
provisions of the State Constitution
He said courts at different levels should be
set up. Basic principles on the Supreme Court, status of that court,
appointment of judges and the terms to be called and the number to be appointed
should be laid down.
The invited person delegates group agreed
that the Supreme Court of the Union should be called "Pyidaungsu Taya
Hluttaw-chok", the chief of the Supreme Court "Chief Justice of the
Pyidaungsu (Union)", and judges of the Supreme Court "Pyidaungsu
(Union) judges".
Considering the status of Supreme Court of
the Union, judicial powers to be vested, duties, rights and volume of work, the
number of Union judges including the Chief Justice should be a minimum of seven
and a maximum of eleven.
Regarding qualifications to be prescribed for
the appointment of the Chief Justice and judges of the Union, basic principles
should be laid down on age limits, allegiance to the State, good character and
conduct, rights and responsibilities, citizenship, to be born of parents both
of whom are citizens, possessing qualifications prescribed for Pyithu Hluttaw
representatives, rich experience, ability to exercise the three powers -- the
legislative, the executive and the judiciary separately, ability to exercise
reciprocal control of the powers, free from party politics, being not a Hluttaw
member and so forth.
He also suggested that when there arises a
situation in which the Chief Justice of the Union or the judges of the Union
should not be allowed to continue their service it should be included in the
constitution vesting powers in the President of the State or Pyidaungsu Hluttaw
what procedures are to be followed. He then suggested thus in connection with
vesting powers in the President.
[Ouster and departure of Judges]
-- If the Chief Justice of the Supreme Court
of the Union or a judge of the Union infringes any of the undermentioned
points, then the President of the State has the right to order that person to
resign and to remove him from office if he fails to comply with the order--
(a) treason
(b) violation of the provisions of the
Constitution,
(c) misconduct,
(d) being disqualified for the post of the
Chief Justice of the Union or judge of the Union as prescribed in the
Constitution.
With the exception of the President's
ordering to resign and removing from the post, the Chief Justice of the Union
and Judges of the Union shall have the right to serve till they are fully 70
years of age if there does not arise any of the following reasons such as
voluntary resignation, termination of service after impeachment, becoming unfit
to continue service for permanent disability due to physical or mental
impairment as certified by a medical board prescribed by the State, death or
for any other reason.
He then suggested specific laws should be
promulgated to prescribe the status, responsibilities, rights and privileges of
the Chief Justice of the Union and Judges of the Union and to prescribe the
status of the Chief Justice of the Union to be the same status as the
Vice-President, that of the judges of the Union to be the same status as Union
Ministers.
Regarding formation of Region and State
Hluttaws, the Union would be constituted with seven Regions and seven States
plus Union territories, he said. Regions and States are equal in status. In the
administration of justice, he said, basic principles have been laid down that
there would be one High Court of the Region in each region and one High Court
of the State in each state. It is appropriate and it should be laid down in the
administration of justice.
He also suggested the heads of the respective
Region and State High Courts should be called "Chief Justice of the High
Court of the Region" or "Chief Justice of the High Court of the
State:; judges of those High Courts should be called "judges of the Region"
or "judges of the State". The required number of judges should be
appointed and assigned duties in the respective High Courts considering the
judicial powers, responsibilities and rights as well as the volume of work.
Hence, there should be a minimum number of three and a maximum number of seven
judges including the Chief Justice at the High Courts of the Region and the
State.
U Dabang Nokle
U Dabang Nokle of other invited delegates
group submitted the remaining part of the proposal paper.
[Region/State courts]
In connection with the qualifications of the
Chief Justice and Judges of High Courts of regions or states, he said, the
following should be laid down as detailed principles to serve as bases:
-- The Chief Justice and Judges of High
Courts of regions or states must have the following qualifications:
(a) they should not be younger than 45 years
of age and not older than 65 years of age;
(b) with the exception of age limit, they
must have the qualifications prescribed for region or state Hluttaw
representatives;
(c) (1) if they are judicial officers or law
officers, they should hold the post not lower than that of region or state
level for at least five years or not lower than that of district level for at
least 10 years; or
(2) if they are advocates they should have
not less than 15 years' service; or
(3) those regarded by the President of the
State as well-known legal experts of good reputation;
(d) those who are loyal the State and the
citizens;
(e) they shall not be political party
members;
(f) they shall not be Hluttaw
representatives.
[Termination of judges]
He said there may arise a situation in which
the Chief Justice or Judges of the High Court of region or state should not
continue to hold the post. In such a situation it is necessary to prescribe
explicitly in the Constitution what steps should be taken either by the
President or by the respective region or state Hluttaw. In the basic principles
laid down in the chapter on the State at the previous Plenary Session, it is
stated 'the Head of State is the President of the State,' and 'the President of
the State represents the Union". In accordance with this principle as the
President is the Head of State and also represents the Union, basic principles
should be laid down giving the right to the President to order the Chief
Justice or Judges of High Courts of region or state he himself has nominated in
consultation with the Chief Justice of the Union and Chief Minister of the
region or state concerned and then appointed and assigned duties with the
approval of region or state Hluttaw concerned, to resign for what kinds of
reasons and the right to order them to be removed from office.
He said rights should be given to region or
state Hluttaws, for using the method of impeaching the Chief Justice or Judges
of High Courts of region or state and removing them from office. In connection
with the method of impeaching by region or state Hluttaw, there is only one
Hluttaw at region or state level and a written proposal signed by at least
one-fourth of the total membership of Hluttaw of region or state shall be
submitted to the chairman of the Hluttaw concerned. The chairman of the Hluttaw
concerned shall cause the charge to be investigated by forming a commission.
The chairman of the Hluttaw is to report to the region or state Hluttaw on the
results of the investigation submitted to him by the investigation committee.
If it is found that the charge is correct and that the Chief Justice or Judge
of High Court of region or state is not fit to continue in office, then it is to
be supported by not less than two thirds of the total membership of the Hluttaw
of the region or state and the chairman of the Hluttaw is to submit the matter
to the President who shall then order removal of that person from office.
[Terms of office]
He said it will be necessary to prescribe the
normal term of office of the Chief Justice and Judges of the High Court of the
region or state, except in cases in which the President of the State orders
resignation or termination of service of any of them. Like the Chief Justice of
the Union and Judges of the Supreme Court, they should have the right to serve
up to the age of 65 years, except in cases of voluntary resignation,
termination of service after impeachment, becoming unfit to continue service
for permanent disability due to impairment of physical or mental health as
certified by the medical board prescribed by the State or for some other
reason, or in the case of one passing away.
[Conflicts of interest]
In connection with the need for the Chief
Justice and Judges of the High Court of the region or state to be free of party
politics and to retire from civil service, it should be laid down, as detailed
principles to serve as bases:
1. The Chief Justice and Judges of the High
Court of the region or state shall be free of party politics;
2. The Chief Justice and Judges of the High
Court of the region or state, if they happen to be civil servants, shall be
considered as having retired from the civil service from the date they are
appointed as Chief Justice or Judge of the High Court of the region or state.
[Local courts]
He said only two levels of courts should be
formed under the High Court of the region or state -- the self-administered
division court if there is a self-administered division in the region or state,
and township court; or self-administered zone court if there is a
self-administered zone in the region or state, and township court; in areas
other than self-administered division or zone, there should only be district
court and township court. In Union territories, if necessary, there may be
districts and townships. So, district courts and township courts are to be
formed in Union territories.
He said there may be other courts, separately
set up by law, under the region or state High Court. For instance, there are
separately formed courts such as juvenile courts and there should be such other
courts as those set up by law under the High Court of the region or state.
He said the other invited delegates group has
submitted altogether 20 papers on 11 occasions, from 17-10-94 to 20-1-95, and
put forward thorough discussions and expressed belief that the proposals would
contribute to the respective chapter in the State Constitution to be written.
Union Pa-O National Organization
U Khun Sein Win of Union Pa-O National
Organization said it should be laid down as principles that the Supreme Court
of the Union is the highest court of law of the State; the head of the Supreme
Court of the Union shall be called Chief Justice of the Union; in the Supreme
Court of the Union, there may be appointed a minimum of seven and a maximum of
eleven judges of the Supreme Court, inclusive of the Chief Justice of the
Union; the person nominated by the President of the State and approved by the
Pyidaungsu Hluttaw shall have no right to turn down the nomination for the
Chief Justice and judges of the Union presented by the President of the State,
unless it has clear proof of any wanting in qualifications prescribed in the Constitution.
He said it should be laid down as principles
that the Chief Justice of the Union and judges of the Supreme Court shall have
the following qualifications: they shall not be younger than 50 and not older
than 70 years of age; they shall have qualifications required pf Pyithu Hluttaw
members, except that for stipulation of age; they shall have served at least
five years as judges of the High Court of the Region or State (or) if they are
judicial or law service personnel, they must have served at least ten years at
a post not lower than Region or State level (or) they must have been handling
cases at least 20 years as an advocate (or) persons deemed by the President of
the State as law experts of high reputation; they must be loyal to the State and
the citizenry; they must not be members of any political party; they must not
be members of Hluttaw.
In each Region or State there should be a
high court of Region or State; its head should be called chief justice of the
high court of Region or State; there should be at least three judges including
the chief justice of the high court.
They should be allowed to serve till they are
fully 65 years old, except in cases of resignation, termination of duties,
becoming unfit to continue serving in their posts due to ill health, or death;
they must be free of party politics and, if they are in civil service, they
shall be deemed to have resigned from service from the date of their
appointment as chief justice or judges.
Chief justice of the high court of Region or
State should be of the status of Union minister and judges of the high court of
Region or State should be that of Union deputy minister; their duties, rights
and privileges should be prescribed by law.
For judges other than the Chief Justice of
the Union, judges of the Supreme Court, chief justice of the high court of
Region or State, judges of the high court of Region or State, appointment,
jurisdiction, duties, rights and privileges should be prescribed in accord with
law.
For the Supreme Court of the Union, the high
court of Region or State and other courts, formation of service personnel
organizations and prescribing of duties, rights and privileges should be in
accord with law.
Shan State Kokang Democratic Party
U Anthony Su (a) U La Yaung of Shan State
Kokang Democratic Party said his party would propose the following principles:
1. Judicial powers of the State are
distributed as follows:
(a) by the Constitution or by other law, to
the Supreme Court of the Union, High Courts of the Region, High Courts of the
State, Courts of self-administered division, courts of self-administered zone,
district courts, township courts and other courts established by law, and
judges appointed in accord with law;
(b) by the Constitution or by other law, to
the courts-martial;
(c) by the Constitution, to the
Constitutional Tribunal.
Detailed principles should be laid down also
as follows:
2. There is established a Supreme Court of
the Union; without infringing upon the powers of the Constitution Tribunal, the
Supreme Court of the Union is the highest court of the State, the court of
final appeal of all courts and courts-martial in the country.
3. The Supreme Court of the Republic of the
Union of Myanmar shall have powers to issue the five writs;
4. There shall be a high court of the State
for each State and a high court of the Region for each Region;
5. The head of the Supreme Court of the Union
shall be called Chief Justice of the Union and its members shall be called
judges of the Supreme Court of the Union; in the Supreme Court of the Union,
there may be appointed up to seven members thereof;
6. Three qualified persons shall be nominated
by the President of the State in consultation with the Prime Minister of the
Union and the one who gets the highest number of votes of the Pyidaungsu
Hluttaw shall be appointed Chief Justice of the Union by the President of the
State;
7. Persons nominated by the Prime Minister of
the Union in consultation with the Chief Justice of the Union, and approved by
Pyidaungsu Hluttaw may be appointed judges of the Supreme Court by the
President of the State;
8. The Chief Justice of the Union and judges
of the Supreme Court shall have the following qualifications:
(a) they shall be not younger than 50 years
and not older than 70 years of age;
(b) they shall have qualifications required
of Pyithu Hluttaw members, except that for stipulation of age;
(c) they shall have served at least five
years as judges of the High Court of the Region or State (or) if they are
judicial or law personnel, they must have served at least ten years at a post
not lower than Region or State level (or) they must have been handling cases at
least 15 years as an advocate;
(d) they must be loyal to the State and the
citizenry;
(e) if they are members of any political
party, they must not take part in party political activities during their term
of office;
(f) if they are members of Hluttaw, they must
resign therefrom, from the date they take up duties of office.
All courts and judges in the Republic of the
Union of Myanmar appointed by the Constitution or by law shall strictly abide
only by the Constitution and laws; they shall undertake administration of
justice and perform their duties independently.
The Supreme Court of the Union shall be
responsible to the Pyidaungsu Hluttaw.
The chief justice of the Union shall be
responsible to Pyidaungsu Hluttaw.
State or Region high court and
self-administered area courts shall be responsible to the Hluttaw concerned; in
linkage of work they shall also be responsible to the Supreme Court of the
Union; in line of communication, they also need to accept administration of the
ministry of judicial affairs.
Chief justice of State or Region high court
shall be responsible to the Hluttaw concerned; in linkage of work, it [sic] shall
also be responsible to the Chief Justice of the Union.
Judges of the State or Region high court
shall be responsible to the chief justice concerned. (NLM 12/19)
Dec. 19: The Plenary Session of the National
Convention continued, with 507 of 590 delegates present. Proposal papers on the
Judiciary were read by delegates from the political parties delegates group and
from the representatives-elect delegates group [full texts]:
[Mro (or) Khami National Solidarity
Organization]
U Maung Kyaw Oo of Mro (or) Khami National
Solidarity Organization said it was suitable to lay down the following
principles:
Judicial powers of the State are distributed
as follows:
(a) by the Constitution or other law, to the
Supreme Court of the Union, High Courts of the Region, High Courts of the
State, Courts of self-administered division, courts of self-administered zone,
district courts, township courts and other courts established by law, and
judges appointed in accord with law;
(b) by the Constitution or by other law, to
the courts-martial;
(c) by the Constitution, to the
Constitutional Tribunal.
He recalled that the Chairman of the Work
Committee proposed the following detailed principles:
1. There shall be established a Supreme Court
of the Union; without infringing upon the powers of the Constitutional Tribunal
and the courts-martial, the Supreme Court of the Union is the highest court of
law of the State.
2. (a) The head of the Supreme Court of the
Union shall be called Chief Justice of the Union;
(b) In the Supreme Court of the Union, there
may be appointed a minimum of seven and a maximum of eleven judges of the
Supreme Court, including the Chief Justice of the Union.
3. (a) The person nominated by the President
of the State and approved by the Pyidaungsu Hluttaw shall be appointed Chief
Justice of the Union by the President of the State;
(b) The Pyidaungsu Hluttaw shall have no
right to turn down the nomination for the Chief Justice of the Union presented
by the President of the State, unless it has clear proof of any wanting in
qualifications prescribed by the Constitution.
4. (a) Persons nominated by the President of
the State in consultation with the Chief Justice of the Union, and approved by
the Pyidaungsu Hluttaw shall be appointed judges of the Supreme Court by the
President of the State;
(b) The Pyidaungsu Hluttaw shall have no
right to turn down the nomination for the judges of the Supreme Court presented
by the President of the State, unless it has clear proof of any wanting in
qualifications prescribed by the Constitution.
He said Hluttaw should be one practising
genuine democracy representing the people; giving powers only to an individual
is tantamount to going against genuine democracy and it could upset
administration of justice as it overrides the principle of independent
administration of justice according to the laws of the State.
So the choosing of persons to serve as the
Chief Justice of the Union and judges of the Supreme Court of the Union should
be done only by the Pyidaungsu Hluttaw representing the people.
In conclusion he said he had presented his
organization's proposals, openly and honestly for the good of the country in
accord with the National Convention's objectives of non-disintegration of the
Union, non-disintegration of solidarity and perpetuation of sovereignty, and
that there are no other discussions on the remaining points.
[Lahu National Development Party]
U Kya Har Shel
U Kya Har Shel of Lahu National Development
Party said he took Hluttaw to mean a place of congregation of elected people's
representatives; Pyidaungsu taya hluttaw chok and Region or State taya Hluttaw
are not ones like that; there could be confusion with elected Hluttaws; so they
should be called Pyidaungsu taya yonchok and Region or State taya yonchok.
For appointment of judges of the Supreme
Court of the Union, the Prime Minister of the Union in consultation with the
Chief Justice of the Union should prepare a nomination and present it to the
President of the State who should, with the approval of the Pyidaungsu Hluttaw,
appoint the nominees as judges of the Supreme Court.
[Legal "experts" should be barred]
In prescribing qualifications for the posts
of the chief justice of the Union and judges of the Supreme Court, there is
included one qualification which says they must be persons deemed by the
President of the State to be legal experts of high reputation; he wondered how
it could be measured; he said if one person were to be judged legal expert on
the strength of the opinion of the President of the State alone; it could
reflect on the integrity of the President and it could also cause undesirable
doubts and contentions; moreover one who is well versed in law but has not
judicial experience should not be given such duties; so the said qualification
should not be included.
Administration of justice is to decide
righteously for the people; it needs to protect the rights of the people
without bias; only with righteous administration of justice will the people be
able to enjoy peace of mind and security in mind and body; law courts need to
be free of unfairness due to four causes of injustice; administration of
justice needs to be independent according to law; otherwise there could be no
justice; if someone meddles, gives instructions or exerts pressure in
administration of justice, it could not be carried out independently according
to law; a basic principle should be laid down that the Supreme Court, and all
courts and judges in the country are to abide only by the Constitution and the
laws of the country and must be able to carry out administration of justice
independently according to law; only then would emerge a judiciary that has
maturity and the confidence of the people.
Union Kayin League
Mahn Tin Maung (a) Mahn Myo Nyunt of the
Union Kayin League said at courts such as the Supreme Court of the Union and
High Courts of the Region and State, each court should be set up with a minimum
three to maximum qualified judges. Detailed basic principles should be laid
down.
At the Courts of the Self-administered
Divisions/Zones and District/Township Courts, a qualified judge should hear
cases and a detailed principle should be laid down.
[Legal "expertise" insufficient]
He suggested not to lay down a stipulation
stating "those regarded by the President as well-known legal experts for
[sic] good reputation" as a basic principle. Because, he said, the term
"well-known and good reputation" carries broad meaning and there
could require reasons.
A legal expert should have personally handled
many cases from beginning to end to become a judge. Handling cases is different
from studying law. The efficiency could be acquired only by handling many cases
from beginning to end.
Hence, a legal expert should have rich
experience as a judicial officer, lawyer or law officer. He should be efficient
in his profession, rich in experience and of good reputation.
So, the basic principle "those regarded
by the President as well-known legal experts for good reputation" should
not be laid down.
He said, in the new multi-party democratic
State, qualified and experienced persons should take part in the legislative,
executive and judicial matters. Objectives of the National Convention are to be
followed.
Hence, the following qualifications required for
the Chief Justices and judges should not [sic ???] be laid down as basic
principles. They are:
-- persons who are not political party
members,
-- are not Hluttaw representatives,
-- the Chief Justice of the Union or Union
judges shall be free from party politics,
-- Chief Justices and judges of Regions or
States shall be free from party politics.
He said the Union Kayin League would like to
propose that though judges to be appointed and assigned duties are civil
servants, they will have to personally handle cases and as such they should
possess qualifications of a judge. They are to provide leadership in the
administration of justice and to exercise judicial powers independently
according to law.
Hence, they should be loyal to the State,
uphold the laws in accord with the Constitution, experienced in legal matters,
of good character, able to exercise judicial powers and rights, citizens
themselves and born of parents both of whom are also citizens.
Moreover, they should be mature persons. They
should possess required experience in legal and judicial affairs so that they
will be able to pass correct decisions. To be able to discharge duties boldly
and with dignity they should possess qualities for it. Then only will they be
respected and trusted by the people and feared by law breakers.
Hence, apart from the Supreme Court of the
Union and Region and State High Courts, judges to be appointed and assigned
duties as civil servants are to be vested with powers only if they meet the
qualifications for judges.
He said additional points would be submitted
in connection with prescribing rights and responsibilities of judges at lower
courts under the Region or State High Courts and promulgation of specific law.
Those judges are the most responsible persons
to uphold the judicial pillar and they should not misuse powers vested in them
for self-interest. Since they have to discharge duties in different areas there
should be security for their safety.
Service personnel may involve in practices of
bribery and corruption and irregularities unless their salaries are sufficient.
This should be taken into consideration.
Relevant laws should be promulgated to enable
office staff at various levels to enjoy sufficient salary.
[Arbitration for Kayins]
He noted there could arise disputes and
problems sometimes among the people and among the Kayin nationals. They would
include cognizable offences, those which could be settled or otherwise and
major or minor offences. Such cases could be settled by respectable
arbitrators. This has been so in their way of life and there had been no grudge
or spite. He said Kayin nationals would like to enjoy peaceful life and they
uphold the traditions and customs as law.
Hence, settlement of cases by arbitrators
according to the wishes of both sides should be accepted as final in order to
bring down the number of cases. This should be laid down as a basic principle,
he said.
He added a basic principle should also be
laid down to call the place of arbitration as "Taya-yay Khon-yon"
(arbitration office).
A basic principle should also be laid down
permitting to form a Kayin affairs arbitration with more than one arbitrators.
However, he said, a Kayin affairs arbitration will not have the right to settle
cases concerned with national security and cases of great importance.
He said discussions on and additions to the
formation of the chapter "The Judiciary" were presented to ensure
justice in administrative, social and judicial aspects in building a new
nation.
Kokang Democracy and Unity Party
U Khin Maung Aye, National Convention
delegate of Kokang Democracy and Unity Party, submitted a proposal paper on
fundamental principles to form as bases in the chapter the Judiciary.
He said he would succinctly put forward views
and opinions of the party on clarifications of the National Convention
Convening Work Committee Chairman.
He spoke of the law, which is for all,
regardless of poverty or richness, race, religion or status and said every law
enacted is directed toward welfare and justice of the citizenry, adding laws
are promulgated to protect citizens.
So, he said, every citizen must respect and
abide by law which brings about justice in the people's essential needs such as
food, clothing and shelter and social affairs.
It is essential for every person, regardless
of race or religion and poverty or richness, to be equal before the law, he
noted and said punishment must be meted out to culprits and protection must be
given to the innocent.
He stressed the need for judicial personnel
to adhere to law in their service and to be upright, disciplined and loyal to
the State.
As the fundamental principle has been laid
down for exercising the three powers -- the legislative, executive and
judiciary -- in a system of reciprocal check, control and balance, rules to be
followed by judges must be prescribed, he said.
He said judicial personnel must be right,
swift and upright and adhere to law for emergence of a judicial system in which
people have respect and faith and there should be reciprocal check and control
among themselves to prevent bribery as in the saying 'the person who bribes
more wins the case'.
He stressed the need for the people to
understand law and said only then will they adhere to it, adding there are many
nationals on hill areas who, for difficulty of access, are lacking in education
and do not understand laws.
He also stressed the need for educating the
people, who are afraid of courts and judicial personnel, that law is the light
for the innocent.
He spoke of his party's belief that
respective customary laws accepted region-wise by Union national races be
framed within the law for administration of justice.
Wa National Development Party
U Nyi Paloke, National Convention delegate of
Wa National Development Party, submitted a proposal paper on fundamental
principles to form as bases in the chapter the Judiciary.
He expressed support to the fundamental
principle to distribute legislative [sic] powers of the State to civil courts,
as explained by the National Convention Convening Work Committee Chairman in
his address to the Plenary Session on 2-9-94, and Constitutional Tribunal and
said distribution of judicial powers is concerned with the entire Union.
He reiterated the Work Committee Chairman's
proposal that the court which supervises various levels of civil courts should
be called Pyidaungsu Hluttawgyoke. He spoke of the word 'Hluttaw' which may be
confused with Pyithu Hluttaw, elected by the Multi-party Democracy General
Election under the Pyithu Hluttaw Election Law, and so he suggested the terms
-- 'Pyidaungsu Taya Yongyoke' (Supreme Court of the Union) for the highest
level, region Taya Yongyoke (High Courts of the Regions) and state Taya
Yongyoke (High Courts of the States).
He suggested formation of district courts and
ward/village-tract courts under the self-administered division court.
Summing up, he suggested the following to
form as bases in the chapter the Judiciary:
1. The Supreme Court of the Union, the Chief
Justice of the Union and Judges of the Supreme Court shall be formed and
appointed with suitable persons in appropriate numbers.
2. The President of the State shall appoint,
in consultation with the Prime Minister of the nomination list, the Chief
Justice of the Union and Judges of the Supreme Court after obtaining approval
of the Union Hluttaw.
3. Qualifications of the Chief Justice of the
Union and Judges of the Supreme Court shall be separately provided.
4. In regions and states, region or state
High Courts, Chief Justices and Judges must be constituted.
5. Self-administered division or zone,
district and township courts are to be constituted in the respective division,
zone, district and townships:
(a) to appoint judges to respective courts
after prescribing their qualifications;
(b) to enact into law ways of passing
decisions under existing cultural traditions and customs of national races
unless they are contrary to the Constitution and other laws and do not affect
nationals and national races;
(c) to assign duties and appoint national
races leaders and representatives who may be weak in legal affairs but are
upright and respected by many as judges of self-administered division and zone
and district courts or other courts constituted by law.
6. Responsibilities, rights and privileges of
the Chief Justice of the Union, Judges of the Supreme Court and judges of
regions, states and self-administered divisions and zones are to be prescribed
by enactment of law.
7. The Chief Justice of the Union, of the
highest court, and judges at various levels
(a) shall have the right to resign from post
of his own volition;
(b) shall be terminated from service when he
is impeached in accordance with the Constitution and if the impeachment is
proved true after due investigation.
8. All judges shall independently administer
justice and carry out functions in accordance with the Constitution and other
laws.
9. Any or all judges, from the date of
appointment, shall quit party functions if he is a political party member,
resign from being Hluttaw representative if he is a Hluttaw representative and
shall retire from post if he is a service personnel or a member of an
organization.
He stressed the need for the judicial system
to win people's trust and reliance by administrating justice correctly and
expeditiously and said courts would achieve higher prestige with flourishing
judicial system which would bring about peaceful solution of disputes. Only
when the people have trust and reliance on the courts will they feel pleasant
with unity forged and loving kindness dispensed to the government, he noted. He
stressed the need to view that judicial power is entrusted by the people to
bring about public interest and justice. (NLM 12/20)
Shan Nationalities League for Democracy
U Sai Aik Poung of the Shan Nationalities
League for Democracy said their party would suggest the following principles to
be laid down as bases:
[Original jurisdiction]
1. The Final Court of Appeal shall be the
Supreme Court of the Union,
2. (a) The Supreme Court of the Union shall
have exclusive original jurisdiction --
(i) in all matters arising under any treaty
made by the Union,
(ii) in all disputes between the Union and a
unit or between one unit and another,
(iii) in such other matters, if any, as may
be defined by law.
(b) If the Supreme Court of the Union is
satisfied that a case pending in any inferior Court involves or is likely to
involve substantially a question of the validity of any law having regard to
the provisions of this Constitution, the High Court shall transfer the case to
itself for trial.
(c) No law shall be enacted excepting from
the appellate jurisdiction of the Supreme Court of the Union cases which
involved questions as to the validity of any law having regard to the
provisions of the Constitution.
(d) All the High Courts of the Regions and
States shall function also as original courts. They shall, subject to law, have
original and appellate jurisdiction and power to determine all manners and
questions whether of law or fact.
[Appointment of judges]
In connection with appointment of judges of
the Union he proposed the following principles should be laid down:
(1) the President of the State and the Chief
Justice of the Union shall submit the nomination of those they have prepared in
coordination having prescribed qualifications to the Supreme Court for the
appointment of judges of the Union,
(2) The Pyithu Hluttaw Judicial Committee and
Lumyosu (Amyotha) Hluttaw Judicial Committee shall hear and debate on matters
concerning performance, opinions, legal outlook and character of the persons
nominated for the posts of judges of the Union and submitted by the President
of the State and Chief Justice of the Union giving sufficient time for the
interested persons including those who have been nominated, and then decide by
secret votes whether they should be recommended or not,
(3) persons recommended by the Judicial
Committee shall be submitted to the Pyidaungsu Hluttaw session for its
decisions,
(4) the person shall be appointed judge of
the Union with the approval of more than half of the Pyithu Hluttaw
representatives,
(5) unless majority support is obtained in
the Pyidaungsu Hluttaw Judicial Committee for the selection and appointment of
the Chief Justice of the Union or judges of the Union, or unless majority
support is obtained in the Pyidaungsu Hluttaw in spite of the majority support
in the Pyidaungsu Judicial Committee, the President of the State and the Chief
Justice of the Union shall proceed, within the framework of their rights, up to
the end for the appointment of judge or judges of the Union [sic].
He then proposed the following to be added to
and be laid down as a basic principle in connection with administration of
justice.
"Judges appointed according to this
Constitution or according to law at courts set up according to this
Constitution or according to law shall administer the judicial affairs
throughout the Union.
U Sai Nyunt Lwin
U Nyunt Lwin, National Convention delegate of
the Shan Nationalities League for Democracy, submitted the remaining part of
the proposal paper compiled by the party on the fundamental principles to be
included in the chapter the Judiciary.
[Region or State courts]
Judicial field which must be free of sympathy,
gratitude and timidity had been extensively dealt with, he said and noted only
then would various levels of judges be able to administer justice in accordance
with law. People will not have awe of the independent, frank, bold and serious
judges and instead, they will have love, respect and reliance on them and
courts.
He suggested methods of electing the Chief
Justice of the region, head of the region High Court, and the Chief Justice of
the state, head of the state High Court. He said the Chief Minister of the
region or state concerned shall submit the name of a qualified person to the
Judicial Committee of the respective region or state Hluttaw; the Judicial
Committee shall scrutinize it and obtain approval of more than half the
membership of the respective Hluttaw; the Chief Minister concerned shall submit
the name thus approved to the President of the State who then appoints the
person the Chief Justice of the region or state concerned.
So, he said, regarding methods for electing
Chief Justice of High Court of the region or state, the following should be
laid down as fundamental principles to serve as bases:
1. the Chief Minister of the region or state
concerned shall submit a name for appointment of the Chief Justice of the
region or state to the respective region or state Hluttaw;
2. to be able to appoint the person nominated
by the respective region or state Chief Minister as the Chief Justice of the
respective region or state, the Judicial Committee of the respective region or
state Hluttaw shall cause, by allowing time, the person's activities, opinions
and beliefs, legal viewpoints, morality, etc., to be scrutinized by the
interested people, and discussed by the committee and decision must be taken by
secret ballot;
3. the name of the person endorsed by the
Judicial Committee shall be submitted to a session of the region or state
Hluttaw for decision;
4. if more than half the membership of the
respective region or state Hluttaw supports him, the Chief Minister of the
region or state concerned shall submit his name to the President of the State;
5. the President of the State shall appoint
the person submitted by the Chief Minister of the respective region or state
respective [sic] as the Chief Justice of the High Court of the region or state.
He said our country is still not developed
and the people of states have not achieved progress and so the Shan
Nationalities League for Democracy submitted proposals at its best on the
formation of the chapter the Judiciary which should be regarded by the people as
a place of reliance or a place of allaying their suffering.
He stressed the need for the judiciary to
stand independently, free of constraints and influence and for those who
administer justice to be imbued with integrity, uprightness and good morality and
to be bold and serious, and said these conditions must be created by the
Constitution.
He said the Shan State Nationalities League
for Democracy believed that its proposals would fulfil these requirements.
National Unity Party
U Tun Yin Law of the National Unity Party
said the party supports the proposed judicial structure of having courts at
four levels, the Supreme Court of the Union; Region or State high courts;
self-administered division or zone courts and district courts; and township courts,
as they are in accord with the structure of the State and the needs of the
country, and capable of letting the people enjoy justice, with rights of
appeal.
He also expressed agreement in principle for
the following:
Judicial powers of the State are distributed
as follows:
(a) by the Constitution or by other law, to
the Supreme Court of the Union, High Courts of the Region, High Courts of the
State, Courts of self-administered division, courts of self-administered zone,
district courts, township courts and other courts established by law, and
judges appointed in accord with law;
(b) by the Constitution or by other law, to
the courts-martial;
(c) by the Constitution, to the co, to the
Constitutional Tribunal.
However he said the clause "judges
appointed in accord with law" should be deleted from sub-para (a).
The judicial pillar and the basic principle
of independent judiciary would be much strengthened by the provisions in the
Constitution and relevant laws on such matters as qualifications of judges,
delegation of powers, jurisdictions, rights and duties, and terms. So just as
it is to be laid down in the Constitution to distribute judicial powers to
courts at various levels in the country, a detailed principle should be laid
down that the prescribing of jurisdictions of courts in the country shall be
done in accord with law.
[Constitutional Tribunal]
He said it is also proposed that the setup of
the constitutional tribunal should be prescribed in the Constitution.
Persons on the constitutional tribunal should
have the following qualifications:
(a) they must not be younger than 50 or older
than 70 years of age;
(b) they must be experienced in legal,
political, economic, military, administrative and social spheres or in one of
them;
(c) the must have a reputation of upright
morality.
So it should be formed with Pyidaungsu
Hluttaw members, persons of mature experience in political, administrative,
military, legal fields and learned persons.
[Need for multi-judge courts]
Referring to a clause "except for the
Chief Justice of the Union, judges of the Supreme Court, judges of Region or
State high courts" he said it might appear to mean there are two sets of
judicial organizations; in truth there should only be one.
The single-judge system tends to be
vulnerable to bribery and corruption; at present it is being revived at
divisional, district and township levels and there are such weaknesses as
individuals doing whatever they like, being weak or faulty in getting at the
truth or making judicial appraisals, resulting in inconsistencies between one
court and another. So administration of justice should be entrusted to judicial
bodies comprising three to five judges at each self-administered area, district
and township court.
He said his party concurred that selection,
posting, transfer, promotion, censure of judges on self-administered division,
zone, district and township panel of judges should be handled by the Supreme
Court of the Union, just as the same for public service personnel is to be done
by the Public Service Commission.
Administration of justice needs to be free
from unfairness due to personal bias, animosity, fear or ignorance and in
accord with law so as to ensure justice among the people to protect their
rights and redress wrongs; it is also subtle, profound and broad; it involves
not only the judicial sector but also the legislative and executive sectors as
well, and it is also affected by political, economic and social conditions in
the country and cultural levels; efforts must be made from all round for an
upright judiciary.
[Representatives-elect delegates group]
Shan State Kokang Democratic Party
U Yaw Aye Hla was to present the paper on
behalf of representatives-elect from the Party, but as it was the same as that
presented by the Party delegate from political parties delegates group on Dec.
18, it was submitted without reading.
[Mro (or) Khami National Solidarity
Organization]
U San Tha Aung
U San Tha Aung of Mro (or) Khami National
Solidarity Organization, delegate from Kyauktaw Township, Rakhine State, said
Judicial powers of the State are distributed
as follows:
(a) by the Constitution or by other law, to
the Supreme Court of the Union, High Courts of the Region, High Courts of the
State, Courts of self-administered division, courts of self-administered zone,
district courts, township courts and other courts established by law, and
judges appointed in accord with law;
(b) by the Constitution or by other law, to
the courts-martial;
(c) by the Constitution, to the
Constitutional Tribunal.
[Pyidaungsu Hluttaw should choose judges]
He recalled that the Chairman of the Work
Committee proposed the following detailed principles:
1. There shall be established a Supreme Court
of the Union; without infringing upon the powers of the Constitutional Tribunal
and the courts-martial, the Supreme Court of the Union is the highest court of
law of the State.
2. (a) The head of the Supreme Court of the
Union shall be called Chief Justice of the Union.
(b) In the Supreme Court of the Union, there
may be appointed a minimum of seven and a maximum of eleven judges of the
Supreme Court, inclusive of the Chief Justice of the Union.
3. (a) The person nominated by the President
of the State and approved by the Pyidaungsu Hluttaw shall be appointed Chief
Justice of the Union by the President of the State;
(b) the Pyidaungsu Hluttaw shall have no
right to turn down the nomination for the Chief Justice of the Union presented
by the President of the State, unless it has clear proof of any wanting in
qualifications prescribed by the Constitution.
4. (a) Persons nominated by the President of
the State in consultation with the Chief Justice of the Union, and approved by
Pyidaungsu Hluttaw shall be appointed judges of the Supreme Court by the
President of the State;
(b) The Pyidaungsu Hluttaw shall have no
right to turn down the nomination for the judges of the Supreme Court presented
by the President of the State, unless it has clear proof of any wanting in
qualifications prescribed by the Constitution.
He said Hluttaw should be one practising
genuine democracy representing the people; giving powers only to an individual
is tantamount to going against genuine democracy and it could upset
administration of justice as it overrides the principle of independent
administration of justice according to the laws of the State.
So the choosing of persons to serve as the
Chief Justice of the Union and judges of the Supreme Court of the Union should
be done only by the Pyidaungsu Hluttaw representing the people.
In conclusion he said he had presented his
organization's proposals, openly and honestly for the good of the country in
accord with the National Convention's objectives of non-disintegration of the
Union, non-disintegration of national solidarity and perpetuation of
sovereignty, and that there are no other discussions on the remaining points.
[Shan Nationalities League for Democracy]
U Khun Tun Oo
U Khun Tun Oo of the Shan Nationalities
League for Democracy submitted the proposal paper on the chapter "The
Judiciary". He singled out points contained in their party's paper as
follows:
(1) not to tarnish the original justice.
(2) with morality, concentration and wisdom
administration of justice will be upright,
(3) no person exercising executive power
shall interfere or influence the independent and righteous administration of
justice,
(4) judicial bodies should, in all
seriousness, avoid biased practices,
(5) administration of justice should be
independent,
(6) to recognize and grand individual right
and human rights to everybody, and appreciate the value of man than materials
[sic],
(7) to see that courts are truly reliable for
the people,
(8) though qualifications are to be taken
into consideration for the appointment of judges, attorneys, lawyers and
service personnel who are directly involved in the administration of justice,
emphasis should be placed on appointment of persons having morality,
concentration and wisdom,
(9) documents which play vital role in
administration of justice should be kept according to law,
(10) the courts and judges should be
protected from any influence.
Then the principle "Sovereign power of
the State is derived from the citizens and is in force in the whole
country" would become more meaningful.
There would appear the model pillar of the
judiciary when words of the wise stating that all the human beings are equal
before law, no one is above law, and the human society should not be for the
State, but the State should be for the human society could be materialist. (NLM
12/21)
U Sai Tun Aung
U Sai Tun Aung, National Convention delegate
of the Shan Nationalities League for Democracy, submitted the second part of
the proposal paper compiled by the party on the fundamental principles to be
included in the chapter the Judiciary.
[Jurisdiction]
The following, he said, should be laid down
as fundamental principles to form bases:
1. Pyidaungsu Taya Hluttaw is the final court
of appeal.
2. (a) Pyidaungsu Taya Hluttaw shall have the
exclusive jurisdiction for the following matters:
(1) all matters arising under any treaty made
by the Union;
(2) all disputes between the Union and a unit
or between one unit and another;
(3) such other matters, if any, as may be
defined by law.
(b) If the Taya Hluttaw is satisfied that a
case pending in any inferior Court involves or is likely to involve
substantially a question of the validity of any law having regard to the
provisions of this Constitution, the Taya Hluttaw shall transfer the case to
itself for trial.
(c) No law shall be enacted excepting from
the appellate jurisdiction of the Supreme Court cases which involved questions
as to the validity of any law having regard to the provisions of this co cases
which involved questions as to the validity of any law having regard to the
provisions of this Constitution.
(d) Courts of first instance shall include
State/Region Taya Hluttaws (High Courts) which shall, subject to law, have
original and appellate jurisdiction and power to determine all matters and
questions whether of law or of fact.
[Appointment of judges]
Regarding the appointment of Judges of the
Supreme Court, he said, the following should be laid down as fundamental
principles to serve as bases:
1. The President of the State shall consult
with the Chief Justice of the Union for obtaining a nomination list of persons
having qualifications prescribed for Judges of the Supreme Court and submit it
to the Union Hluttaw for appointment of Judges of the Supreme Court.
2. To be able to appoint persons nominated by
the President of the State and the Chief Justice of the Union as the Judges of
the Supreme Court, the Judicial Committee of the Pyithu Hluttaw and the
Judicial Committee (Union Judicial Committee) of the Lumyosu (Amyotha) Hluttaw
shall cause matters concerning the nominees' activities, opinions and beliefs,
legal viewpoints and moral character to be heard by interested people in
sufficient time allowed [sic] and shall thoroughly discuss them and decide by
secret ballot whether it should be endorsed or not.
3. Names of persons endorsed by the Judicial
Committee are to be submitted to the Union Hluttaw session for seeking
decision.
4. Judges of the Supreme Court shall be
appointed with a vote supported by more than half the total membership of the
Union Hluttaw.
5. Regarding appointment of the Chief Justice
of the Union and Judges of the Supreme Court, if the vote is not supported by
the majority of the Union Judicial Committee after its scrutinization or if the
vote is not supported by more than half the total membership of Union Hluttaw
despite support vote of the majority of Union Judicial Committee, the President
of the State and the Chief Justice of the Union shall, within the framework of
their rights, submit nomination lists to the Union Hluttaw for appointment of
the Chief Justice of the Union [sic] or Judges of the Supreme Court till the
matter is settled.
The Shan Nationalities League for Democracy
submitted the following to serve as basis:
'Justice throughout the Union shall be
administered in courts established by the Constitution or by law and by judges
appointed in accordance therewith.'
U Sai Tin Win
U Sai Tin Win, National Convention delegate
of the Shan Nationalities League for Democracy, submitted the third part of the
proposal paper compiled by the party on the fundamental principles to be
included in the chapter the Judiciary.
Judicial field which must be free of
sympathy, gratitude and timidity had been extensively dealt with, he said and
noted only then would various levels of judges be able to administer justice in
accordance with law. People will not have awe of the independent, frank, bold
and serious judges and instead, they will have love, respect, and reliance on
them and courts.
[Region or State courts]
He suggested methods of electing the Chief
Justice of the region, head of the region High Court, and the Chief Justice of
the state, head of the state High Court. He said the Chief Minister of the
region or state concerned shall submit the name of a qualified person to the
Judicial Committee of the respective region or state Hluttaw; the Judicial
Committee shall scrutinize it and obtain approval of more than half of the
membership of the respective Hluttaw; the Chief Minister concerned shall submit
the name thus approved to the President of the State who then appoints the
person the Chief Justice of the region or state concerned.
So, he said, regarding methods of electing
Chief Justice of High Court of the region or state, the following should be
laid down as fundamental principles to serve as bases:
1. The Chief Minister of the region or state
concerned shall submit a name for appointment of the Chief Justice of the
region or state to the respective region or state Hluttaw;
2. to be able to appoint the person nominated
by the respective region or state Chief Minister as the Chief Justice of the
respective region or state, the Judicial Committee of the respective region or
state Hluttaw shall cause, by allowing time, the person's activities, opinions
and beliefs, legal viewpoints, morality, etc., to be heard and scrutinized by
the interested people, and discussed by the committee and decision must be
taken by secret ballot;
3. the name of the person endorsed by the
Judicial Committee shall be submitted to a session of the respective region or
state Hluttaw for decision;
4. if more than half the membership of the
respective region or state Hluttaw supports him, the Chief Minister of the
region or state concerned shall submit his name to the President of the State;
5. the President of the State shall appoint
the person submitted by the Chief Minister of the respective region or state
respective [sic] as the Chief Justice of the High Court of the region or state.
He said our country is still not developed
and the people of states have not achieved progress so the Shan Nationalities
League for Democracy submitted proposals at its best on the formation of the
chapter the Judiciary which should be regarded by the people as a play of
reliance or a place of allaying their suffering.
He stressed the need for the judiciary to
stand independently, free of constraints and influence and for those who
administer justice to be imbued with integrity, uprightness and good morality
and to be bold and serious, and said these conditions must be created by the
Constitution.
He said the Shan Nationalities League for
Democracy believed that its proposals would fulfill these requirements. (NLM
12/22)
Dec. 20: The Plenary Session of the National
Convention continued, with 511 of 590 delegates present. Proposal papers on the
Judiciary were read by members of the of the Representatives-elect delegates
group and the National Races delegates group [full texts]. The Plenary Session
then adjourned until January 8, 1996.
U Hla Maung
U Hla Maung of representative-elect del-elect
delegate group submitted his proposal paper on the chapter "The
Judiciary".
He said people, who can live in peace thanks
to a government capable of ensuring the rule of law fully, would not easily
realize the fate of other people having to live in an environment of fear for
their survival. Under the circumstances, judges bear heavy responsibilities in
meting out fitting punishments independently and succinctly, settling disputes
and extending help to ensure the rule of law. So, courts at different levels
should be set up for distribution of judicial powers of the State as follows:
1. The Supreme Court of the Union shall be
the highest court in the State. The Supreme Court of the Union shall be the
final court of appeal of all courts in the State.
2. (a) The head of the Supreme Court of the
Union shall be called "the Chief Justice of Supreme Court of the
Union".
(b) It should be designated to appoint seven
judges of the Supreme Court of the Union including the Chief Justice.
Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw are the main central
bodies responsible for separately exercising the legislative, executive and
judicial powers for the people on their behalf. The term "Hluttaw"
has been regarded as the highest body of the nation since the time of ancient
Myanmar kings and as such other bodies should not be called
"Hluttaw". So, the highest court in the State should be called
"Pyidaungsu Taya Yonchok" (Supreme Court of the Union).
3. (a) The President of the State shall, in
consultation with the Prime Minister of the State, nominated three qualified
candidates for the post of the Chief Justice and submit the nomination to the
Pyidaungsu Hluttaw.
(b) The Pyidaungsu Hluttaw shall elect one of
the three candidates, who wins the highest number of votes cast by the
representatives and he shall be appointed as the Chief Justice of the Union by
the President of the State.
4. (a) The President of the State shall, in
consultation with the Chief Justice of the Union, nominated candidates for
judges of the Union and appoint them with the approval of the Pyidaungsu
Hluttaw.
(b) If the nomination for the judges of the
Union submitted to the Pyidaungsu Hluttaw by the President of the State
includes any candidate lacking the qualifications for a judge of the Union, he
shall be replaced by another.
He said these points should be laid down as
basic principles.
[Local courts]
In connection with courts to be set up
according to separate laws under the High Courts of the Region and High Courts
of the State, he supported the following basic principles:
-- under the High Court of the region or
state, there are the following levels of courts:
(a) if there is no self-administered area in
the region or state
(1) district courts
(2) township courts
(b) if there is self-administered area in the
region or state
(1) in the self-administered division
(aa) court of the self-administered division
(bb) township courts
(2) in the self-administered zone
(aa) court of the self-administered zone
(bb) township courts
(3) in other areas
(aa) district courts
(bb) township courts
(c) in Union territory
(1) district courts
(2) township courts
In conclusion, he said adopting the concept
that the government exists to serve the people, and the people do not exist to
serve the government, he had proposed points on the legislature, executive and
judiciary to be included in the constitution with the aim of defining broadly
the fundamental rights of the people such as freedom of expression, freedom of
faith, freedom of organization and formation, enjoying equal protection of law
and just and fair judgement according to law while at the same time stating
explicitly responsibilities to be carried out by the people.
U Aung Thein
U Aung Thein, independent
representative-elect of Ywangan Constituency, Shan State, submitted a proposal
paper collectively compiled by independent representatives-elect Dr. Hmu Thang
of Thangtlang Constituency, Chin State, U Tun Kyaw of Namhsan Constituency,
Shan State, and himself on the chapter the Judiciary.
He said achievement of a peaceful, prosperous
condition in a country depends on rule of law and individual adherence to law
and discipline and the judicial pillar will sway with rampant depraved moral
character, leaving all nationals and administrative authorities in distress and
remarked that all must be equal before the law, regardless of race or religion
or status.
[Advice of Gen. Ne Win]
A law should provide equal rights to all
citizens and judges be granted rights to independently administer justice, he
suggested and stressed the need for judges to adhere to law in their
administration of justice. Regarding this, he submitted a piece of counsel
given by General Ne Win to his Attorney-General, "Give the kind of legal
advice which is reasonable. At courts, let judges decide independently of their
jurisdiction. If it is necessary, a law must be amended. Don't take a meaning
as one wishes it to be."
He suggested judges be given sufficient
salary and other allowances and rights and privileges, free of pressure from
any party, organization or individual. He stressed again the importance of
independent administration of justice, saying a judge will not come to a right
decision if he is given a pressure.
[Customary law of national races]
Cases that have arise among national races
and sub-races be settled through respective traditions and customs and
customary laws should not be superseded by any other law, he said.
So, he said, formation of the judicial system
should be directed toward correct and expeditious disposal of cases, welfare of
parties involved in a case and eradication of bribery. He emphasized the
formation of a judicial system needed for emergence of laws equal to all in
this Union where genuine multi-party democracy system will soon flourish.
He commented that the National Convention
Convening Commission Chairman's address at the 2-9-94 Plenary Session was
complete and expressed support to the Chairman's suggestions of distribution of
powers, the name of the highest court in the State, status of the highest court
and titles of judges to be appointed to the court.
[President must accept Pyidaungsu Hluttaw
judicial nominees]
Regarding the appointment of judges, he said,
paras 3 and 4 should be substituted with the following:
3. (a) The President of the State shall
appoint a person nominated by Pyidaungsu Hluttaw the Chief Justice of the
Union;
(b) The President of the State shall have no
right to reject a person nominated by Pyidaungsu Hluttaw for appointment of the
Chief Justice of the Union unless he can proved clearly want of qualifications
prescribed by the Constitution for the Chief Justice of the Union.
4. (a) The President of the State shall
appoint the person nominated by Pyidaungsu Hluttaw in consultation with the
Chief Justice of the Union as Judge of the Supreme Court;
(b) The President of the State shall have no
right to reject a person nominated by Pyidaungsu Hluttaw for appointment as a
Judge of the Supreme Court unless he can clearly prove want of qualifications
prescribed in the Constitution for Judges of the Supreme Court.
[Age limits]
He said the group had no suggestions as to
qualifications of the Chief Justice of the Union and Judges of the Supreme
Court. However, he said, if the maximum age for the Chief Justice of the Union
and Judges of the Supreme Court is designated as 70, the person at the time of
appointment as Chief Justice or Judges of the Union should not exceed 65 years
of age. He remarked only then would he be able to complete his duty during a
term of the Hluttaw.
Fundamental principles have been laid down to
prescribe by enactment of separate laws regarding the status of the Chief
Justice and Judges of the High Courts of regions or states and their duties,
rights and privileges and regarding formation of various levels of courts under
the region or state High Court, appointment of judges at inferior courts,
vesting them with jurisdiction and their duties, rights and privileges and
regarding formation of staff at the Supreme Court of the Union, High Courts of
regions or states and other courts and their duties, rights and privileges, he
said and expressed agreement to them as clarified by the National Convention
Convening Work Committee Chairman. (NLM 12/22)
U Htawng Kho Thang
U Htawng Kho Thang, independent
representative-elect for Tamu Constituency in Sagaing Division, of
representatives-elect delegates group submitted his paper on the chapter
"The Judiciary".
[Use of customary law to reduce court
backlogs]
He said a study of the present human societies
has would indicate that there has been an increase in the number of economic
and social problems due to the growth in population. These problems had to be
settled at nearest township courts (courts of first instance). Under such
circumstances, courts would not be in a position to handle them well and cases
could be delayed. And the delay could affect the process of passing fair
judgements. Then programmes drawn up by the State for bringing down the number
of cases would not be as effective as desired.
So, relevant customary laws of various
national races should be promulgated as necessary in the areas of the national
races concerned to contribute towards correct and speedy administration of
justice and bringing down the number of cases.
He noted certain disputes settled according
to existing laws do not conform to customary laws of some national races. Since
decisions do not satisfy both parties there can create situations to commit
more offences, he said.
He then proposed prescribing in the constitution
promulgation of customary laws to be practised to settle disputes among
national races in the respective areas.
[Election of judges]
In connection with nominating judges, he
stressed the need for the executive chiefs and Hluttaw chairmen concerned to choose
the candidates independently and widely [sic]. He also spoke of the need not to
affect a citizen's right to stand for election and to vote for a candidate of
his choice. At the same time, he said, arrangements would have to be made to
enable the people to freely and widely participate in exercising the three
sovereign powers -- the legislative, executive and judicial powers -- of the
State for the flourishing of genuine multi-party democratic system and
worthiest of worldly values of justice, liberty and equality. Only a few would
get the chance to stand for election if there are too many restrictions or
limitations. He said he believed more qualified judges would be elected from
among a large number of candidates.
It would not be sufficient for judges just
because they are well-versed in legal matters. They would have to win public
reliance and confidence. They would not win public reliance and confidence just
because they are experienced legal experts and are well known in the
profession. The people always rely on and value those who are more concerned
with public interest than self-interest.
So, if a person proficient and experienced in
legal matters and trusted by the people is prevented from being elected as a
judge just because he is a member of a political party or a Hluttaw
representative, the basic principle on this point would be contrary to one of
the objectives of the National Convention calling for flourishing of worthiest
of worldly values of justice, liberty and equality.
It would also amount to preventing persons of
political parties and Hluttaw representatives who are legal experts possessing
qualifications of good judges from playing a role in public administration, he
said.
He then suggested to permit persons having
prescribed qualifications for Chief Justice or judges to stand for election as
the Chief Justice of the respective courts and judges of those courts
regardless of their being political party members or Hluttaw representatives.
He said he had submitted the proposal paper
based on the points -- equal before the law and nobody is above the law.
He said he had also proposed methods for
speedy and correct disposal of cases. He said he had also proposed a new system
of democratic public administration of justice in the essence of favouring
none.
Moreover, he said, he had presented check and
balance to be exercised among the democratic judiciary, executive and
legislative systems.
In conclusion, he said his paper was
submitted with the belief that an enduring constitution would emerge in
conformity with the period heralding the Golden Jubilee of the country's
independence and with the Panglong Spirit or the Union Spirit.
National races delegates
U Ba Than of Taunggyi, National Convention
delegate of national races delegate group, submitted a proposal paper compiled
by the group on the chapter 'the Judiciary'.
He said the national races delegate group has
submitted suggestions with unity and coordination within the framework of the
six objectives of the National Convention since its beginning on fundamental
principles to serve as bases in writing an enduring Constitution.
He said that as fundamental principles
regarding administration of justice have been thoroughly discussed, the
following are put forward as detailed fundamental principles:
-- The judicial power of the State is
distributed
(a) in accordance with the Constitution or by
other laws, among Pyidaungsu Taya Hluttawgyoke (Supreme Court of the Union),
region Taya Hluttaws (High Courts of the Regions), state Taya Hluttaws (High
Courts of the States), courts of the self-administered divisions, courts of the
self-administered zones, district courts, township courts, other courts
constituted by law and judges appointed in accordance with law,
(b) in accordance with the Constitution or by
other laws, among courts-martial, and
(c) in accordance with the Constitution, to
the Constitutional Tribunal.
[Qualifications of judges]
Regarding the qualifications of the Chief
Justice of the Union and Judges of the Supreme Court, he said, the following
should be laid down as fundamental principles to serve as bases:
-- The Chief Justice of the Union and Judges
of the Supreme Court shall
(a) be not younger than 50 years and not
older than 70 years;
(b) possess, apart from the age limit,
qualifications prescribed for Pyithu Hluttaw representatives;
(c) (1) have been for at least five years a
judge of the High Court of a region or state, or
(2) have been for at least ten years a
judicial officer or a law officer at not lower than region or state level, or
(3) have been an advocate of the Taya Hluttaw
(High Court) of at least 20 years' standing, or
(4) have been assumed by the President to be
a legal expert of prominent reputation;
(d) be loyal to the State and citizens;
(e) not be a member of a political party;
(f) not be a Hluttaw representative.
It should be explicitly prescribed in the
qualifications of the Chief Justice of the Union and Judges of the Supreme
Court that they shall not be members of any political party and moreover, that
they shall be free of party politics, and if they are civil servants, it shall
be deemed that they have retired from civil service in accordance with the
existing rules and regulations from the date they are appointed the Chief
Justice of the Union or Judges of the Supreme Court.
So, he said, the following should be laid
down as fundamental principles to serve as bases:
1. The Chief Justice of the Union or Judges
of the Supreme Court shall be free of party politics;
2. If Chief Justice of the Union or Judges of
the Supreme Court are civil servants, it shall be deemed they have retired from
civil service in accordance with the existing rules and regulations from the
date they are appointed the Chief Justice of the Union or Judges of the Supreme
Court.
He said that when the Chief Justice of the
Union or Judges of the Supreme Court are appointed, their status should be
designated -- the Chief Justice of the Union at the level of the Vice-President
of the State and Judges of the Supreme Court at level of the Union Ministers --
and regarding this, a detailed principle should be laid down.
Responsibilities, rights and privileges of
the Chief Justice of the Union or Judges of the Supreme Court should be
prescribed by enactment of law, he said.
U Saw Khin Maung Gyi
U Saw Khin Maung Gyi of Kyimyindine Township,
Yangon Division, of the same group, submitted the second part of the proposal
paper.
[Region or State courts]
In connection with the formation of region
Taya Hluttaw (High Court of the Region) and state Taya Hluttaw (High Court of
the State), he said the following should be laid down as fundamental principles
to serve as bases:
1. There shall be one High Court of the
Region in each region and one High Court of the State in each state;
2. (a) The head of the High Court of the
Region in the respective regions and the head of the High Court of the State in
the respective states shall be called Chief Justice of the High Court of the
Region or Chief Justice of the High Court of the State.
(b) At least three and maximum seven Judges
of the High Court of the Region or Judges of the High Court of the State
including the Chief Justice of the High Court of the Region or State can be
appointed to the High Court of the Region or State.
3. (a) The President of the State is to
compile a nomination list for the appointment of the Chief Justice of the High
Court of the Region or State and a nomination list for the appointment of
Judges of the High Court of the Region or State, in consultation with the Chief
Justice of the Union and the Chief Minister of the Region or State concerned,
and send them to the Region or State Hluttaws concerned.
(b) The President of the State shall appoint
persons approved by the respective Region or State Hluttaws as the Chief
Justice of the High Court of the Region or State and as Judges of the High
Court of the Region or State.
(c) a region Hluttaw or state Hluttaw has no
right to reject nominees of the President of the State for the appointment of
the Chief Justice of the High Court of the Region or State and nominees for the
appointment of Judges of the High Court of the Region or State unless it can
show clear proof of want of qualifications for the Chief Justice of the High
Court of the Region or State or Judges of the High Court of the Region or
State.
A fundamental principle should be laid down
in the qualifications for the Chief Justice of the High Court of the Region or
State or Judges of the High Court of the Region or State that they shall not be
members of any political parties as for the Chief Justice of the Union and
Judges of the Supreme Court. If they are civil servants, it shall be deemed
that they have retired from civil service from the date they are appointed
Chief Justice of the High Court of the Region or State or Judges of the High
Court of the Region or State.
[Local courts]
He said there are normally two kinds of
courts -- original court and appeal court and if there are many levels of
courts, there will be waste of time and energy in appealing a case. So, he
said, levels of courts should be designated in accordance with procedures being
practised in permitting appeals and revisions and to enable people to enjoy the
right of appeal in accordance with law.
So, in connection with formation of various
levels of courts under the High Court of the region or state, he said the
following should be laid down as fundamental principles to serve as bases:
-- under the High Court of the region or
state, there are the following levels of courts:
(a) if there is no self-administered area in
the region or state
(1) district courts
(2) township courts
(b) if there is self-administered area in the
region or state
(1) in the self-administered division
(aa) court of the self-administered division
(bb) township courts
(2) in the self-administered zone
(aa) court of the self-administered zone
(bb) township courts
(c) in Union territory
(1) district courts
(2) township courts
(d) other courts set up by law.
He said all delegates of the national races
delegate group have the wish to accept the decision of the National Convention.
He said the group put forward proposals with
an awareness that emergence of an enduring Constitution that guarantees
perpetual national unity depends on the National Convention delegates. (NLM
12/23)
Dec. 22: Alternate members of the Panel of
Chairmen scrutinized the proposal papers presented on the Legislature,
Executive, and Judiciary. The News and Periodicals Enterprise gave a news
conference "to clarify the address of the Chairman of the National Convention
Convening Commission and the Commission Press Release." (NLM 12/23) //
Dec. 24: Scrutinization continued. (NLM 12/25) // Dec. 26: Scrutinization
continued. (NLM 12/27) // Dec. 27: Scrutinization continued. (NLM 12/28) //
Dec. 29: Scrutinization continued. (NLM 12/30)
86 NLD Delegates Ousted
Nov. 30 [full text]: 86 of NLD revoked from
being National Convention delegates for going AWOL.
The Panel of Chairmen submitted to the
National Convention Convening Work Committee that the total number of
Convention delegates permitted to attend the National Convention plenary
session which began on 28 November 1995 was 677.
The delegates are to attend the plenary
session regularly in conformity with rights and responsibilities granted under
paragraph 5 of the National Convention Procedures, and if they cannot, they are
to ask the Panel of Chairmen in advance for leave.
However, five Convention delegates of
National League for Democracy, included in the political parties' delegates
group, and 81 delegates of NLD, included in the Hluttaw representatives-elect
delegates group, failed to attend the plenary session for two consecutive days,
on 29 and 30 November, without obtaining prior permission from the Panel of
Chairmen.
Hence, upon presentation of the Panel of
Chairmen and as provided in the paragraphs 48 and 49 of the National Convention
Procedures, the Work Committee has revoked the 86 delegates, who went absent
without leave, from being National Convention delegates. (NLM 12/1)
Rallies for Convention
Dec. 3: Mass rallies were held in support of
the National Convention. 30,000 turned out in Magway, and 55,000 in Monywa.
Motions in support of the Convention were unanimously passed. (NLM 12/4)
Dec. 4: A mass rally of 27,270 of people from
Sagaing, Myinmu, Myaung, and Ngazun Townships in Sagaing Division was held in
support of the National Convention. Sagaing Division Union Solidarity and
Development Association official U Saw San Soe Thein presided; "he noted
as the National Convention has been making progress and gaining momentum, there
emerged groups wishing to disrupt it. Certain groups expecting foreign support
are speaking ill of the National Convention, he said. They openly moved to take
control of the Convention and write a constitution according to the taste of their
mentors outside the country. He said a total of 86 delegates of the National
League for Democracy...left on 28 November 1995. They thus put pressure on the
Convention, he said.... He said he had learned that the delegates have
determined to carry on trying to achieve success till completion of the
National Convention...." The rally gave unanimous support to the
Convention, and "ended with chanting of slogans." (NLM 12/5)
Dec. 5: Mass rallies for the National
Convention: 57,495 attended from Wetlet, Tabayin, YeU, Taze, KhinU, Kanbalu,
and Kyunhla Townships rallied in Shwebo. 61,950 people attended a rally in
Mandalay. 25,000 attended a rally in Minbu. 1,000 attended a rally in Pabedan
Township, Yangon. (NLM 12/6)
Dec. 7: Mass rallies: 20,000 attended in
Kalay, Sagaing Division. 21,500 attended in Kyaukse, Mandalay Division. (NLM
12/8)
Dec. 8: Mass rallies: 12,890 attended in
Kengtung. 2,000 attended in Hlegu Township. (NLM 12/9)
Dec. 9: Mass rallies: Over 120,000 people
from 42 Yangon townships attended on the lawns of National Stadium-1 in
Thuwunna, Thingangyun Township, Yangon. The rally was sponsored by the Union
Solidarity and Development Association. 15,380 attended a rally in Taunggyi.
20,000 attended in Bago. 18,000 attended in Katha. 45,700 attended in Pyapon.
35,000 attended in Thayet. (NLM 12/10)
Dec. 10: Mass rallies: 72,000 attended in
Dawei; 2,150 in Hlegu Township, Yangon; 30,000 in Pathein; 22,000 in Hinthada;
27,500 in Myaungmya; 4,501 in Nahtogyi; 3,500 in Taungtha. (NLM 12/11)
Dec. 11: Mass rallies: 10,050 attended in
Mawlike; 15,000 in Tharawady; and 6,200 in Kyaukpadaung. (NLM 12/12)
Dec. 12: Mass rallies: 18,000 attended in
Loikaw; 45,000 in Lashio; and 60,000 in Pakokku. (NLM 12/13)
Dec. 13: Mass rallies: 15,200 attended in Yamethin;
2,000 in NyaungU; 19,194 in Hkamti; and 14,500 in Tamu. (NLM 12/14)
Dec. 14: Mass rallies: 20,000 attended in
Meiktila; and 15,000 in Kyaukme. (NLM 12/ 15)
Dec. 15: Mass rally: 5,000 attended in
Insein. (NLM 12/16)
Dec. 16: Mass rallies: 20,000 attended in
Muse. (NLM 12/17)
Dec. 18: Mass rallies on Dec. 14-17: 36,000
attended in Thayetchaung Township; 3,800 in Mohnyin; 4,500 in Htilin;
(unspecified) in Myawady; and 61,000 in Myitkyina. (NLM 12/ 19)
Dec. 19: Mass rallies on Dec. 17-18: 17,000
attended in Mogaung; and 50,000 in Hpa-an. (NLM 12/20)
Dec. 20: Mass rallies on Dec. 17-19: 2,500
attended in Kyayan; 15,000 in TadaU, and 21,500 in Kyaukse. (NLM 12/21)
Dec. 21: Mass rally on Dec. 20: 37,780
attended in Kawkareik, Kayin State. (NLM 12/ 22)
Dec. 23: Mass rally: 19,00 attended in
Kyaukphyu. (NLM 12/24)
Dec. 25: Mass rally on Dec. 24: 36,700
attended in Kawthoung Township. (NLM 12/ 26)
Dec. 26: Mass rally on Dec. 19: 5,000
attended in Putao. (NLM 12/27)
Dec. 27: Mass rally: 42,300 attended in Myeik.
A motion was passed "calling for ostracizing and opposing people
attempting to disrupt the National Convention." (NLM 12/28)
Dec. 30: Mass rallies: 25,000 attended in
Thandwe District, Rakhine State. Chairman U Min Min Kyaw said "subversive
elements have emerged" and are trying to manipulate the National
Convention "in favour of their masters abroad." He called the
withdrawal of the National League for Democracy "tantamount to
blackmailing the Convention," and said subversives should be exposed and
ostracized. On Dec. 15 & 18 there were other rallies: 3,000 in Kunlong and
6,500 in Kutkai.(NLM 12/31)