PROCEEDINGS OF THE NATIONAL CONVENTION

7 March 2005

From “The New Light of Myanmar” 8 March 2005


Work Committee’s clarification concerning detailed basic principles to be laid down for sharing of executive and judicial powers to be included in drawing of the State Constitution submitted


YANGON, 7 March — The plenary session of the National Convention continued at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township this morning.


The clarifications of the Chairman of the National Convention Convening Work Committee concerning detailed basic principles to be laid down for power sharing of executive and judicial sectors to be included in the drawing of the State Constitution were read out.


Present at the plenary session were Chairman of the National Convention Convening Commission Secretary-1 of the State Peace and Development Council Lt-Gen Thein Sein and members, Chairman of the National Convention Convening Work Committee Chief Justice U Aung Toe and members, Chairman of the National Convention Convening Management Committee Auditor-General Maj-Gen Lun Maung and members, chairmen of subcommittees and officials, representatives of Kokang Democracy and Unity Party, National Unity Party, Union Kayin League, Union Pa-O National Organization, Mro (a) Khami National Solidarity Organization, Lahu National Development Party and Wa National Development Party, representatives-elect of National Unity Party and Mro (a) Khami National Solidarity Organization and independent representatives, delegates of national races from Kachin, Kayah, Kayin, Chin, Mon, Rakhine, Shan (South), Shan (North) and Shan (East) States, Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon and Ayeyawady Divisions, delegates of peasants from Kachin, Kayah, Kayin, Chin, Mon, Rakhine, Shan (South), Shan (North) and Shan (East) States, Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon and Ayeyawady Divisions, intellectuals and intelligentsia, delegates of workers from Kachin, Kayah, Kayin, Chin, Mon, Rakhine, Shan (South), Shan (North) and Shan (East) States, Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon and Ayeyawady Divisions, delegates of State service personnel from the State Peace and Development Council Office, the President’s Office, the Pyithu Hluttaw Office, the Government Office, the Supreme Court, the Attorney-General’s Office, the Auditor-General’s Office, the Multi-party Democracy General Election Commission Office, the Civil Service Selection and Training Board, the Yangon City Development Committee, the Mandalay City Development Committee and ministries, other invited delegates, delegates of 17 armed national groups who exchanged arms for peace, and representative of other organizations.


Before the plenary meeting of the National Convention, NCCC Chairman Secretary-1 Lt-Gen Thein Sein and members, Chairman of NCCWC Chief Justice U Aung Toe and members, Chairman of NCCMC Auditor-General Maj-Gen Lun Maung and members, chairmen and officials

of the sub-committees, representatives of political parties, representatives-elect, delegates of national races, delegates of peasants, delegates of workers, intellectuals and intelligentsia, delegates of State service personnel and other invited delegates signed the attendance registers

at the Pyidaungsu Hall and the recreation hall for the National Convention delegates.


NCCC Chairman Secretary-1 Lt-Gen Thein Sein presided over the plenary session, and Secretary of the commission Minister for Information Brig-Gen Kyaw Hsan acted as master of ceremonies.


First, the master of ceremonies announced the validity of the meeting as 1,072 out of 1,081 delegates attended the meeting, accounting for 99.17 per cent. Chairman of the Work Committee Chief Justice U Aung Toe explained the matters relating to powers and functions of the President of the State concerning the detailed basic principles to be laid down for sharing of executive and judicial powers to be included in the drawing of the State Constitution.


On behalf of the Work Committee Chairman, Vice-Chairman of the Work Committee Attorney-General U Aye Maung read out matters relating to powers and functions of the President of the State concerning the detailed basic principles to be laid down for sharing of executive and judicial powers to be included in the drawing of the State Constitution.


At 10.30 am, the plenary session resumed.


On behalf of the Work Committee Chairman, Secretary of the Work Committee U Thaung Nyunt submitted matters powers and functions of the President of the State concerning the detailed basic principles to be laid down for sharing of executive and judicial powers to be included in the drawing of the State Constitution.


On behalf of the Work Committee Chairman, member of the Work Committee Deputy Minister for Information U Thein Sein read out matters relating to the executive power of the Union Government concerning the detailed basic principles to be laid down for sharing of executive and

judicial powers to be included in the drawing of the State Constitution.


Next, the plenary meeting went to recess for lunch break.


The plenary session resumed at 1 pm.


Member of the Work Committee Deputy Attorney General Dr Tun Shin, on behalf of the Work Committee Chairman, submitted matters relating to the executive power of the Union Government concerning the detailed basic principles to be laid down for sharing of executive and judicial

powers to be included in the drawing of the State Constitution. (The presentation will be reported later.)


Afterwards, Dr Tin Aung Aye, Supreme Court Judge and Member of the Work Committee, read out matters relating to the executive power of the Union Government concerning the detailed basic principles to be laid down for sharing of executive and judicial powers to be included in the drawing of the State Constitution. Next, the plenary session went into recess.


At 2.15 pm, the plenary session resumed. On behalf of the Work Committee Chairman, member of the work committee Chairman of the Civil Service Selection and Training Board Dr Than Nyun read out matters relating to the executive power of state or region governments concerning the detailed basic principles to be laid down for sharing of executive and judicial powers to be included in the drawing of the State Constitution.


Member of the Work Committee Supreme Court Judge U Tin Aye continued to read out matters relating to the executive power of state or region governments concerning the detailed basic principles to be laid down for sharing of executive and judicial powers to be included in the

drawing of the State Constitution.


Later, today’s plenary session of the National Convention concluded at 3.15 pm.


The plenary session continues at 9 am tomorrow.


Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050307_1.pdf


According to already-laid-down basic principles, the President will have to undertake duties of both the Head of State and the Head of Union Government

YANGON, 7 March — The following is the full clarification made by Chairman of the National Convention Convening Work Committee Chief Justice U Aung Toe on powers and functions of the President for laying down detailed basic principles for sharing of legislative and judicial power to be included in the State Constitution, at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, today.


The previous plenary sessions of the National Convention have laid down the basic principles and detailed basic principles “the Head of State is the President of the Union”, “the Executive Head of State is the President of the State” and “ the President shall exercise powers and functions vested in him by the Constitution and other laws”.


In accord with the basic principles and detailed basic principles, administrative duties and rights as the Head of State and the Executive Head of State should be entrusted to the President. In doing so, the division of the powers and functions to be vested in the President should be as follows:


— executive powers and functions he shall exercise on his own initiative and shall seek the

approval of the Pyidaungsu Hluttaw

— executive powers and functions he shall exercise only with the approval of the Pyidaungsu Hluttaw.


I would like to explain that the executive powers and functions the President shall exercise on his own initiative involve the matters to be performed in coordination with the Pyidaungsu Government, the respective institutions formed in accord with the Constitution, and the advisers in addition to those exercised on his own initiative.


The National Convention Convening Work Committee has studied the powers and functions invested in the President in accord with the constitutions of the respective world nations. In doing so, the Committee has found the following points:


— constitutions of some countries in which the President has to assume only the Head of State duties, and the Prime Minister has to undertake Head of Government duties.

The Work Committee also studied the powers and functions entrusted to the President in the 1947 Constitution of the Union of Myanmar and those vested in the Council of State in the 1974 Constitution of the Socialist Republic of the Union of Myanmar.

According to the already-laid-down basic principles, the President will have to undertake the duties of both the Head of State and the Head of Union Government. Thus, a wide range of necessary powers and functions should be entrusted to the President to enable him to carry out

the executive duties speedily and effectively.


Based on the above-mentioned facts, the Work Committee has divided the duties of the President as “the executive powers and functions he shall exercise on his own initiative”, “the executive powers and functions he shall exercise on his own initiative and shall seek the approval of the Pyidaungsu Hluttaw”, and “the executive powers and functions he shall exercise only with the approval of the Pyidaungsu Hluttaw” to be included in the detailed basic principles for the Constitution. Now, I will continue to present the Work Committee’s study.


The executive power of the Union would be fully entrusted to the President as he will have to act as the Head of State as well as the Head of the Union Government of the Union of Myanmar according to the already-laid-down detailed basic principles. Only then will he be able to speedily and effectively implement all-round national development tasks in the interest of the State and the people.


But he should not have the absolute power in exercising the powers and functions, instead, he should take the responsibility for his actions. In electing the President, the presidential electoral college organized with three groups of Pyidaungsu Hluttaw representatives shall elect three vicepresidents.


Of the three vice-presidents, the presidential electoral college shall elect by vote one of them as the President. In this regard, the term “The President shall be responsible to the Pyidaungsu Hluttaw” should be stipulated in the Constitution. As the Vice-Presidents are also elected by the representatives of the Pyidaungsu Huttaw, the term “The Vice-Presidents shall be responsible to the President and the Pyidaungsu Hluttaw through the President” should also be contained in the Constitution.


Concerning the matter, delegates will have to give suggestion on whether or not the detailed basic principle “The President shall be responsible to the Pyidaungsu Hluttaw. The Vice-Presidents shall be responsible to the President, and the Pyidaungsu Hluttaw through the President” should be laid down.


According to the basic principles and the detailed basic principles laid down by the National Convention, the Head of State is the President of the Union. The President represents the State, and is the Head of State and the leader of all citizens. As the President is the Head of State, he will have to make decisions on the nation’s affairs covering politics, administration, economy, etc. after viewing them from various angles.


In some nations, the national security councils led by the President have been formed under various names to advise and assist the President. In the Article 54 (b) of the 1974 Constitution of Myanmar, it was stated, “The Pyithu Hluttaw shall in accordance with law constitute a National Defence and Security Committee consisting of a suitable number of members of the Council of State and the Council of Ministers”.

The then Pyithu Hluttaw approved the formation of the nine-member National Defence and Security Committee with the Prime Minister as the Chairman on 5 March 1974.


According to the Constitution that will emerge in line with the basic principles and detailed basic principles that have already been laid down, the Pyidaungsu Government will be led by the President without the inclusion of the Prime Minister.


As the President is the Executive Head of the State, he will have to carry out the political, administrative, economic and security tasks of the State daily. Some security and defence issues of the State involve the cases that need immediate and prompt decisions in time. In such a

circumstance, collective decisions after due consultations will be more comprehensive and appropriate than the individual decisions.


To be able to discharge the duties assigned in accord with the Constitution or any of the laws well, the President-led National Defence and Security Council should be formed with the following persons:

1. President

2. Vice-President

3. Vice-President

4. Speaker of the Pyithu Huttaw

5. Speaker of Amyotha Hluttaw

6. Commander-in-Chief of Defence Services

7. Deputy Commander-in-Chief of Defence Services

8. Minister for Defence

9. Minister for Foreign Affairs

10. Minister for Home Affairs Minister for Border Affairs

Here, delegates will have to discuss and suggest whether or not a detailed basic principle should be laid down to form the President-led National Defence and Security Council comprising abovementioned persons.


Now, I will discuss whether or not the duties and rights concerning the granting the right of amnesty to the President. In the world nations, the Head of State usually pardons or commutes the sentences of those serving prison terms in the country on significant days including the

Independence Day, the National Day, the Armed Forces Day, etc. or during an appropriate time.


Sometimes, the amnesty orders are issued on condition or without any conditions to enable the armed insurgents to lay down their guns and return to the legal fold.


When we study the post-independence history of Myanmar, we will find that the Head of State issuing various decrees including amnesty and commutation orders on significant days of the nation, on the days to mark the completion of a national task, in view of the stability of the State

and community peace, or during the times issuance of such orders are deemed necessary.


When the Work Committee studies the constitutions of numerous nations where the President is the Head of State, it finds that the power is vested in the President to grant the right of amnesty or pardon on his own initiative.


Section 60 of the 1947 constitution of Myanmar states “The right of pardon shall be vested in the President.” But in the para (o) of Article 73 of the 1974 Constitution, it states that the right of pardon or amnesty was entrusted to the Council of State instead of the President.


In the section 401 of the existing criminal procedures code of Myanmar, it can be found that the President has been given the right of the suspension of the term of imprisonment on condition or without condition. The section also states that the President has the right to pardon the entire or part of the term of imprisonment. The President himself or the Ministry of Home Affairs and the Ministry of Justice exercising the President’s rights issued amnesty or pardons in line with the section 401.


The constitutions of world nations use various terms for the word “amnesty”. Generally, they use the words “amnesty” and “pardon”. The word “amnesty” carries a wider meaning than the word “pardon”.


Because its definition covers a wide array of sectors from the task of inviting armed insurgent organizations opposing the government to the legal fold, with promises to grant amnesty for them forgiving all the crimes they have committed, closing the cases under trial and granting amnesty for the defendants, declaring amnesty for service personnel facing departmental action for breaking of service rules to granting amnesty to persons who are serving imprisonment for various offenses.


The word “pardon” covers the words commutation, remission, suspension, reprieve and restoration of rights. In view of the above presentations, the Work Committee assumes that the right of pardon on own initiative should be vested in the President in the Constitution.

But the delegation of the right of granting Amnesty on own initiative to the President should be discussed in all seriousness, as the amnesty has much broader meaning than pardon. The issuance of amnesty will require the views from political and national solidarity angles.


Moreover, the declaration of the amnesty for insurgent organizations and members, taking the armed struggle line against the nation, to come back to the legal fold, is required to assess and analyze the prevailing security, economic, social and other situations of the nation of that particular time.


In the Work Committee’s view, the right of granting amnesty in accord with the endorsement of the National Defence and Security Council, formed in line with the Constitution, should be vested in the President to make decisions concerning the amnesty and other related issues.

Here, delegates will have to discuss whether or not to lay down the following basic principles for the powers and functions of the President concerning the pardon and amnesty:


The President shall have


(a) the right of pardon

(b) the right of amnesty in accord with the endorsement of the National Defence and Security Council.


Now, the Work Committee will present its finds to discuss whether or not to delegate the powers and functions to institute, confer or revoke titles, honours and awards to the President.


In world nations, the Head of State usually presents titles, honours and awards to the persons who honour is due on the national significant days including the Independence Day, the National Day, the Armed Forces Day etc. To do so, orders are issued or laws are enacted to create the titles, honours and awards.


In Myanmar also, titles, honours and awards for independence struggle, efficiency, combat, economy, social affairs, administration, State service etc. have been designated, and the Head of State issues orders to confer titles, honours and awards on persons who honour is due on

significant days such as the Independence Day and Armed Forces Day.


It is needed to prescribe the types of titles, honours and awards and the required qualifications for the candidates occasionally. The right of conferring titles, honours and awards is delegated to the President, who is the Head of State, in the constitutions of most of the nations. But generally, the right to create and prescribe titles, honours and awards is not vested in the President.


The stipulations contained in the 1947 Constitution did not include the institution of the titles, honours and awards. But the para (n) of Article 73 of the 1974 Constitution says “The Council of State shall institute, confer or revoke titles, honours and awards.” The constitutions of most of the nations state that the President shall confer the titles, honours and awards. But the constitutions of some nations state that the President shall confer titles, honours and awards in accord with the provisions stipulated in the law.


The right to confer or revoke titles, honours and awards on own initiative should be delegated to the President in accord with the law. A detailed basic principle has been laid down for delegation of the right to devise and institute titles, honours and awards and to prescribe required qualifications of candidates to the Pyidaungsu Hluttaw to discuss the matter in a wide array of sectors so as to enact laws as necessary within the framework of the Constitution. The Work Committee observes that it is more appropriate to invest the right to confer or revoke titles, honours and awards, within the framework of the laws enacted by the Pyidaungsu Hluttaw, in the President.


Hence, concerning the powers and functions of the President to confer or revoke titles, honours and award, the delegates will have to discuss whether or not the following detailed basic principles should be laid down:


“The President shall


(a) confer titles, honours and awards

(b) revoke titles, honours and awards in accord with the law.”


The Work Committee will now present its finds to discuss whether or not the powers and functions on establishment and severance of diplomatic relations with foreign nations should be vested in the President.


Since regaining of independence in 1948, the Union of Myanmar has been extending relations with sovereign nations, especially the neighbouring countries, the UN agencies and international organizations. In doing so, she has to set up proper diplomatic channels, and in some cases, sever diplomatic relations for certain reasons.


In the constitutions of most of the nations, the authority to establish diplomatic channels and cutting off diplomatic relations is not vested in the President. Only the duties covering the appointment or recall of ambassadors, ministers or consuls, and agreeing on the appointment of

foreign diplomats and acceptance of their credentials, are entrusted to the President.


The Work Committee has found that the 1947 Constitution had no separate stipulations concerning the delegation of the duties and rights in connection with the establishment or severance of diplomatic relations to the President. Only in the sub para (1) of the para (2) did the

Constitution stipulate the term “diplomatic, consular, and trade representation” in the Union Legislative List.


The sub para (f) of Article 73 of the 1974 Constitution states, “The Council of State shall make decisions concerning the establishment of diplomatic relations with foreign countries, severance of such relations and appointment and recall of diplomatic representatives.” The responsibility concerning the matter had been delegated to the chairman of the Council of State acting as the President in accord with the decision of the Council of State itself.


The task concerning the establishment or severance of diplomatic relations with foreign nations or international organizations is a delicate matter giving priority to extending friendly relations and maintaining the cordial ties between nations, in addition to its foundation that is whether or not to recognize a nation. Hence, the Work Committee has found that the task should be carried out only with the approval of the Pyidaungsu Hluttaw, instead of entrusting the right to make decision to the President alone. Only then will there be check and balance between the President and the Pyidaungsu Hluttaw and such a practice will lead to serving the Union’s interest better. But concerning a case which needs immediate and prompt action, the President should coordinate with the National Defence and Security Council to address it, and should seek the approval of the Pyidaungsu Hluttaw.


Hence, the powers and functions of the President concerning the establishment or severance of diplomatic relations, the delegates are urged to discuss and suggest whether or not to lay down the detailed basic principle — The President shall establish or sever diplomatic relations with foreign nations with the approval of the Pyidaungsu Hluttaw. But in the cases which need immediate and prompt action, the President shall coordinate with the National Defence and Security Council and sever diplomatic relations with a foreign nation, and he shall seek the

approval of the Pyidaungsu Hluttaw concerning the matter.


Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050307_2.pdf




The President of the State, in accord with law, shall appoint and  dismiss heads of bodies of public services
YANGON, 7 March — The following is the full clarification made by Vice-Chairman of the National Convention Convening Work Committee Attorney-General U Aye Maung, on behalf of the Chairman of the National Convention Convening Work Committee, on powers and functions of the President for laying down detailed basic principles for sharing of legislative and judicial power to be included in the State Constitution, at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, today.
Now, the Work Committee will present its finds on the powers and functions in connection with the appointment and recall of the nation’s diplomats, the agreement of the appointment of foreign diplomats, acceptance of their credentials and sending of information to recall them.
Most of the Republics of the world vest the above-mentioned powers and functions in the Presidents. The 1947 Constitution had no separate stipulations concerning the matter. But it did stipulate the term “diplomatic, consular, and trade representation” in the Union Legislative List of the Parliament. However, the 1974 Constitution states, “The Council of State shall make decisions concerning the establishment of diplomatic relations with foreign countries, severance of such relations and appointment and recall of diplomatic representatives.”
Powers and functions of the President concerning the appointment and acceptance of diplomats should be divided into two parts. The first part deals with the appointment and recall of the diplomats representing our nation. The powers and functions of selecting and appointing an extraordinary and plenipotentiary ambassador or official on own initiative should be vested in the President.
It is found that in most countries the President of the State is vested with that duty and power. It is also found that in some countries the President of the State shall have the power to appoint diplomats only after he has coordinated the list of persons he would like to appoint as diplomats either with the committee formed at the Hluttaw or with a certain body like the civil service commission formed according to the Constitution or a certain law.
The Work Committee however assumes that being the Head of State according to the detailed basic principles already laid down, the President of the State should have the power to name, with his own scruple, a person who will represent and suit the country. For the same reason, the President of the State should also be vested with the concurrent power to recall diplomats on account of their unsatisfactory mission.
The second part concerns the vesting of duty and power to agree on appointment of foreign diplomats, accept the letters of accreditation from foreign diplomats, and to send information on the recall of foreign diplomats. The President of the State should first decide whether foreign diplomats appointed to our country should be accepted or not. Only when the appointment has been approved shall the country concerned have the right to send its diplomat. As the Head of State, the President of the State should accept the letter of accreditation presented by the diplomat whose appointment has thus been agreed on. As the President of the State, he shall therefore have the duty and power to agree on the appointment of the foreign diplomat and the acceptance of the latter’s letter of accreditation.
There may surface conditions in which the country concerned has to be informed to recall its diplomat if the foreign diplomat fails to follow the diplomat codes of conduct. On the event of such conditions, the President of the State should have the power to inform the country concerned to recall that diplomat.
In connection with the duty and power of the President of the State to appoint and recall the diplomats of his country and to agree on the appointment of foreign diplomats, accept their letters of accreditation, and send information on their recall, it is therefore necessary to discuss and suggest as to whether or not detailed basic principles should be laid down as follows:
“The President of the State, in accord with law, shall —
(a) appoint or recall the diplomats of his country;
(b) agree on the appointment of foreign diplomats and send information on the recall of foreign diplomats; and
(c) accept the letters of accreditation presented by foreign diplomats.”
I would like to continue to present the Work Committee’s find of the designation of powers and functions of the President of the State in connection with the appointment and dismissal of departmental heads.
It is common practice in most countries that the President of the State is vested with the power to appoint and dismiss departmental heads. The study of Myanmar Constitutions shows that although the 1947 Constitution does not prescribe the appointment and dismissal of departmental heads by the President of the State, it is stated as the duty of the Council of State in the paragraph (l) of Article 73 of 1974 Constitution that “the Council of State shall appoint or dismiss heads of Bodies of Public Services”.
In the constitution that will come into existence in the future, the President of the State, as the Executive Head of the State, should be vested with the power that enables him to appoint and dismiss heads of bodies of public services.
In connection with the duty and power of the President of the State to appoint and dismiss heads of bodies of public services, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:
“The President of the State, in accord with law, shall appoint and dismiss heads of bodies of public services”.
I will continue the Work Committee’s find as to whether the President of the State should be vested with the powers and functions to sign international agreements, to implement or annul them and to withdraw from them.
All the countries in the world enter into agreements bilaterally or multilaterally or as member countries of the United Nations Organization for reasons of economic relations; military relations; peaceful co-existence and friendly relations; cultural, social, educational and health matters; transport and communication matters; and disarmament matters.
They also make pacts with one another to cooperate militarily, to build stability and peace in their region and to co-exist peacefully. They also make pacts to help one another economically, socially or on the grounds of health. Likewise, they sign agreements on control of narcotics trafficking. Agreements on free trade and control of illegal immigration are also made between one country and the other.
There are pacts made either bilaterally or multilaterally, or among regional countries or UN member countries. In particular, UN-sponsored conventions are in fact the pacts the international community make seriously. There are pacts aimed at the benefit of world nations, and there are some aimed at that of one’s own country and of countries in their region. An agreement signed with the international community does not absolutely concern the person who signed on it but with the country entirely. This being the case, it is considered inappropriate to allow an individual to sign such an agreement freely. Approving it through collective discussions at the Pyidaungsu Hluttaw by taking into consideration the interest of the country will produce the correct and effective outcome.
It is prescribed in many countries that the President of the State shall have the power to enter into international agreements, implement or annul them, and withdraw from them only with the approval from the legislature concerned. It is found that only a few nations have vested the President of the State with the power to do so of his own volition.
It is found that the Legislative Rights of Union Parliament constitute the right “The entering into and implementing of treaties and agreements with other countries” as mentioned in paragraph (5), List II of the Union Legislative List of the third schedule of 1947 Constitution. However, it is not found that the right is prescribed as a separate power and function of the President of the State. It is also found that the Rights of the Council of State in paragraph (h) of Article 73 prescribe “The Council of State shall make decisions concerning the entering into, ratification or annulment of international treaties, or the withdrawal from such treaties with the approval of the Pyithu Hluttaw” and that the Rights of the Council of State in paragraph (i) of Article 73, “The Council of State shall make decisions concerning international agreements.” It is also found that these rights are vested in the Council of State alone, and that the President of the State is not vested with them to do so of his own volition. After 1974 Constitution coming into force, the Council of State formed a scrutinization committee, and duties were assigned to it to categorize the types of treaties the Pyithu Hluttaw needed to approve and the types of agreements the Council of State needed to approve.
After the study of 1974 Constitution, Constitutions of some countries, UN’s international treaties relevant to Vienna Convention and a pack of agreements post-independence Myanmar made with the international community and other countries, the scrutinization committee submitted its report to the Council of State with recommendations. As regards this, the Council of State requested the Pyithu Hluttaw for definition. The Pyithu Hluttaw defined it as follows:
(a) The international treaties to be decided on the ratification or annulment or the withdrawal from such treaties with the approval of the Pyithu Hluttaw in accord with paragraph (h) of Article 73 are as follows:
(1) Boundary Amendment Treaty
(2) War Pacification Treaty
(3) Treaty of Promulgation of Necessary Laws in the Country
(4) Agreement on Defence and Security of the Country
(5) War Reparation Treaty
(6) Treaty of Accountability for Expenditure from State Funds Except Fund Allotment by the Hluttaw
(7) Treaty of Promulgation of International Law
(b) The international agreements to be decided by the Council of State in accord with paragraph (i) of Article 73 are as follows:
(1) Treaty of Amity
(2) Treaty of Non-alignment
(3) Treaty of Non-intervention
(4) Control of Air and Water Pollution Treaty
(5) Treaty of Taxation
(6) Control of Biological Warfare Treaty
(7) Treaty of Non-use of Toxic Chemicals
(8) Nuclear Test-ban Treaty
(9) International Treaty of Asylum
(10) Treaty of Control of Hijacking and Unlawful
Seizure of Aircraft
(11) Treaty of Protection of War Refugees
(12) Treaty of Cultural Exchange
(13) Treaty of Natural Energy and Resources Exploitation
(14) Treaty of Economic Cooperation
(15) Treaty from the Valid Treaty with the Approval of either the Hluttaw or the Council of State
(16) Trade Agreement
(17) Treaty of Loans Permitted by Hluttaw
(18) Navigation and Aviation Treaty
(19) Treaty of Posts and Telecommunications
There may arise unexpected issues in a lot of sectors if detailed basic principles are to be laid down for the constitution, given the categorization of the above-mentioned treaties. The Work Committee therefore assumes that it is not suitable to express what sort of treaties can be signed with the approval of the Pyidaungsu Hluttaw and what sort of treaties the President of the State can sign without the consent of the Pyidaungsu Hluttaw. Generally, the treaties that will require the approval of the Pyidaungsu Hluttaw will be the treaties which are within the rights of the Pyidaungsu Hluttaw according to the constitution and the treaties concerning the crucial responsibilities of the State. The Work Committee also assumes that the agreements the President of the State can sign are agreements, and the treaties made among countries, save those which require the approval of the Pyidaungsu Hluttaw, international treaties.
It is found that in some countries the President of the State shall have the power to enter into treaties only with the counsel or approval of the Hluttaw. It is however found that in some countries the President of the State shall have the power to sign the treaties of his own volition.
As regards the powers and functions explained earlier, it is therefore considered inappropriate to allow the President of the State alone to do so of his own volition as these issues are international rather than individual. Any mistake in the decision of the President of the State will be much harmful to the country. Treaties made in connection with the matters which are within the power of the Pyidaungsu Hluttaw and treaties which will seem crucial for the State should be ratified with the approval of the Pyidaungsu Hluttaw for vesting the President of the State with the duty and power to enter into, ratify or annul international treaties, or withdraw from such treaties.
In connection with the duty and power of the President of the State to sign treaties, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:
“The President of the State, in accord with law,
(a) shall enter into, ratify or annul international, regional or bilateral treaties, or withdraw from such treaties with the approval of the Pyidaungsu Hluttaw; and
(b) shall enter into, ratify or annul international, regional or bilateral treaties which do not require the approval of the Pyidaungsu Hluttaw, or withdraw from such treaties.”
I will continue to present the Work Committee’s find of the right of the President of the State to deliver addresses of the State or public concern either to the Pyidaungsu Hluttaw or to the general public.
As the Head of State who has to lead the country, it is necessary for him to be in close and constant contact with the general public. Only then will he be able to more realize the public life and the true condition of the country. Only when he is in close relations with the public will he be able to serve the interests of the country and the people better and will he win their adulation and respect. By delivering occasional addresses to the public, he will be able to maintain the relations with the public as the Executive Head. In times of emergencies relevant to the country or the public, the Executive Head delivers addresses to the Hluttaw or to the general public to let them know what is going on.
It is found that in the constitutions of most of the countries led by the President as the Executive Head, the President of the State is vested with the right to address the Hluttaw or the whole country at the time and condition considered crucial for the State.
It is found in paragraphs (1 & 2) of Section 61 of 1947 Constitution that “The President may communicate with the Parliament by message or address on any matter of national or public importance. The President may also address a message to the nation at any time on any matter.”
It can be seen in many a country led by the President as the Executive Head that the President of the State usually makes it public everything that should be known by delivering addresses at the Hluttaw or by sending messages. It is therefore considered necessary to include it in the constitution for the President of the State to be vested with the powers to deliver addresses direct to the Hluttaw or to the public or to send messages on any matter of national importance. It is also necessary for the President of the State to occasionally make it public the policies of the country, work programmes, as well as political, security, economic and social conditions of the country. Only then will the people, on their part, realize the affairs of their country and hold fast to what they should follow. They will also be able to maintain and preserve what should be preserved. Moreover, it will amount to the condition in which the President of the State pays serious attention to public affairs without getting out of touch with them. Moreover, it will further strengthen the close cooperation between the President of the State and the Hluttaw.
In connection with delivering addresses by the President of the State to the Hluttaw or the general public, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:
“The President of the State shall have the right to occasionally deliver an address or a message to the meeting of the Pyidaungsu Hluttaw, or to the meeting of the Pyithu Hluttaw, or the Amyotha Hluttaw, or to the whole country on any matter regarding the policies and conditions of the State.”
I will present the Work Committee’s find of the duty and power of the President of the State to call an emergency meeting or a special meeting of the Pyidaungsu Hluttaw, the Pyithu Hluttaw, or the Amyotha Hluttaw.
Should there arise an emergency state in the entire country or any other sound reason, the Pyidaungsu Hluttaw comprising both Hluttaws may hold a meeting or special meeting. As regards this emergency or special meeting to be summoned by the Hluttaw, it is found in the constitutions of some countries that the Hluttaw Chairman or the panel of chairmen, or the organization like the Council of the State, or the President of the State is vested with the power to summon the Hluttaw meeting.
If a state of emergency arises while regular Hluttaw meetings are in progress, it is easy to make decisions at the ongoing meetings. When the Hluttaw meetings are not in session, it will however be necessary to call the Hluttaw as soon as possible to hold emergency meetings. It is found that that power is vested in the President of the State in most of the nations headed by the President. In some countries, the President of the State can call the Hluttaw direct, but in other countries, the Chairman of the Hluttaw concerned or the panel of Chairmen is to be informed in advance of summoning the Hluttaw.
Article 51 of 1974 Constitution prescribes “The Council of State may summon a special or an emergency session of the Pyithu Hluttaw where necessary.”
If the time when the Hluttaw has to make crucial decision for the State is coincided with the time when regular Hluttaw meetings are not in progress, it will absolutely be necessary to summon a special or emergency session of the Pyidaungsu Hluttaw that constitutes two Hluttaws. In such an event, the President of the State should have the right to summon either an emergency or a special session of the Hluttaw through the contact with the Speaker of the Hluttaw.
Since the Speaker of the Pyidaungsu Hluttaw supervises the Pyidaungsu Hluttaw, the President of the State has to inform him of summoning an emergency or a special session of the Pyidaungsu Hluttaw. The points so far mentioned just emphasize the right of the President of the State to summon an emergency or a special session of the Pyidaungsu Hluttaw. The matters related to the designation of when to hold regular sessions of the Hluttaw and other details will be mentioned in the Hluttaw Provisions. In connection with the duty and power entrusted in the President of the State to summon the Pyidaungsu Hluttaw, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:
“The President of the State shall communicate with the Chairman of the Pyidaungsu Hluttaw to summon an emergency or special session of the Pyidaungsu Hluttaw when necessary.”
I will now present the Work Committee’s study in connection with the issue of ordinance with the force of law that should be embodied in the powers and functions of the President of the State.
It is likely for a nation to be faced with an emergency for which immediate action is to be taken for the sake of security reason or other important reasons. In that event, ordinance which has the force of law is to be promulgated. Under normal circumstances, the draft is submitted to the Hluttaw in accord with the procedures if a new law is to be enacted. If the Hluttaw approves, the draft is submitted to the President of the State to pass it into law in accord with the provisions of the Constitution.
The President of the State is to promulgate it as law in accord with the rules and regulations. The situation like this is possible only when the Hluttaw is in session. The President of the State, on behalf of the Hluttaw, is to promulgate the ordinance he considered necessary when the need arises to take immediate action for the country when the Hluttaw is not in session.
Many countries vest the President with the power to promulgate the ordinance for the country. Such an ordinance is promulgated as necessary by the President of the State to take prompt measures against an abrupt issue in the absence of the Hluttaw session. It is therefore necessary to seek approval in the next session of the Hluttaw to be convened in the fixed time-frame. If the Hluttaw approves of that ordinance, it will come into force like a law enacted by the Hluttaw. It is therefore appropriate to vest the President of the State with the power to promulgate the ordinance.
As regards the promulgation of Ordinances, it is prescribed in the paragraph (1) of Section 110 of 1947 Constitution that “If at any time when both Chambers of Parliament are not in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require. An Ordinance promulgated under this section shall have the same force and effect as an Act of the Parliament assented to by the President.”; in paragraph (2) that “Every such Ordinance shall be laid before both Chambers of Parliament within forty-five days from the date of promulgation thereof, unless it shall have been withdrawn earlier by the President, and shall cease to operate at the expiration of fifteen days from the re-assembly of the Chamber of Deputies or the Chamber of Nationalities, whichever is later. Provided that the President may, with the consent of both Chambers of Parliament, extend the Ordinance for such further period as may be deemed necessary.”; in paragraph (3) that “If the Ordinance shall have been withdrawn within forty-five days from the date of its promulgation, it shall be laid before the Parliament in its next ensuing session.”; and in paragraph (4) that “If and in so far as an Ordinance under this section makes any provision which the Parliament would not under this Constitution be competent to enact, it shall be void.”
The article 74 of the 1974 Constitution states, “The Council of State may make, if necessary, ordinances, having the force of law, on matters other than those prescribed in article 47, during the interval between sessions of the Pyithu Hluttaw.
Such orders shall be submitted for approval to the nearest session of the Pyithu Hluttaw held within 90 days. If no session of the Pyithu Hluttaw is due within 90 days after the promulgation of such orders an emergency session of the Pyithu Hluttaw shall be convened and approval obtained. Such orders shall cease to have effect from the date on which they are disapproved by the Pyithu Hluttaw.” According to the article, the authority to issue such orders was not vested in the President, but only in the Council of State.
In some of the countries the authority to issue an ordinance, having the force of law, is entrusted to the President. But the authority is not delegated to the President to exercise it freely and totally, but just to act on behalf of the Hluttaw is not in session. However, the President is prohibited from issuing such ordinances concerning the budget matters of the Union.
The ordinance issued by the President has the force of law only within the prescribed time and condition. The President, after issuing an ordinance,, shall present it to the Hluttaw within a fixed time for approval. The ordinance will cease to have the force of law if he fails to submit it to the Hluttaw within the prescribed time. And if the Hluttaw does not approve the ordinance, it shall cease to have the force of law from the date on which it is disapproved by the Pyithu Hluttaw.
The authority to issue ordinances is vested in the President on conditions set given the nation’s situation and natural conditions.
Hence, the nation also needs to set such conditions appropriate to her situation. In doing so, the limit of the effect of the ordinance issued by the President, and the situation in which it will cease to have effect should be stated. Stipulations in connection with the time frame for the submission to the Hluttaw and when it will become void should be prescribed. It would be necessary to state that with the approval of the Hluttaw such orders will be in effect till the required date, but they shall cease to have effect from the date on which they are disapproved by the Pyidaungsu Hluttaw.
Thus, a law which states, during the time when the Hluttaw is not in session, if there arises matters which need urgent action of the State, the President shall have the right to issue ordinances, having the force of law, should be enacted. But the President should be prohibited from issuing such orders concerning the budget matters of the Union. In the Work Committee’s view, detailed basic principles concerning the matters which state, such ordinances should be submitted for approval to the nearest session of the Pyidaungsu Hluttaw held within 60 days after the promulgation, and if the Hluttaw does not approve them, they should cease to have effect from the date on which they are disapproved by the Pyithu Hluttaw, the President shall issue such ordinances with the approval of the Hluttaw for them to have effect till the required date, Even such an ordinance is revoked 60 days after its promulgation, it shall be presented to the nearest meeting of the Pyidaungsu Hluttaw, and If such an ordinance contains matters which the Pyidaungsu Hluttaw has no right to make decision according to the Constitution, the ordinance cease to have effect should be laid down.
Thus, delegates will have to discuss whether or not the following detailed basic principles should be laid down concerning the President’s functions to issue ordinances:
(a) Except State budget matters, the President shall have the right to issue an ordinance on administrative matters that need immediate action during intervals between sessions of the Pyidaungsu Hluttaw.
(b) If the President has not withdrawn the ordinance issued under sub para (a), he shall submit the ordinance for approval to the nearest session of the Pyidaungsu Hluttaw within 60 days after the promulgation of the ordinance. If the Pyidaungsu Hluttaw has not any schedule to hold a session in 60 days, the President shall call a special session of the Pyidaungsu Hluttaw for approval.
(c) The ordinance shall cease to have effect from the date on which it is disapproved by the Pyidaungsu Hluttaw if it fails to obtain the approval.
(d) The ordinance issued by the President will be in force with the approval of the Pyidaungsu Hluttaw till the required date.
(e) Even such an ordinance is revoked within 60 days after its promulgation, it shall be presented to the nearest meeting of the Pyidaungsu Hluttaw.
(f) If such an ordinance contains matters which the Pyidaungsu Hluttaw has no right to make decision according to the Constitution, the ordinance ceases to have effect.
Clarification on powers and functions of the President presented by National Convention Convening Work Committee Secretary U Thaung Nyunt and presentation on Executive Power of the Union Government made by Deputy Miniter for Information U Thein Sein will be published in tomorrow’s issue.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050307_3.htm