PROCEEDINGS OF THE NATIONAL CONVENTION

8 March 2005

From “The New Light of Myanmar” 9 March 2005

Explanations on adoption of detailed basic principles for sharing of executive, judicial powers to be included in drawing up State Constitution submitted

YANGON, 8 March—The plenary session of the National Convention went on at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township this morning.

The explanations made by the chairman of the National Convention Convening Work Committee about the adoption of basic detailed principles out of the sectors of the sharing of executive and judicial powers to be included in the framing of the State Constitution were submitted to the NC.

Present on the occasion 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 NCC Work Committee Chief Justice U Aung Toe and members, Chairman of the NCC Management Committee Auditor-General Maj-Gen Lun Maung and members, chairmen and officials of subcommittees, delegates of Kokang Democracy and Unity Party, National Unity Party, Union Kayin League, Union Pa-O National Organization, Mro (or) Khami National Solidarity Organization, Lahu National Development Party, and Wa National Development Party, representatives-elect of National Unity Party, Mro (or) Khami National Solidarity Organization, and independent representatives-elect, 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, delegates of 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 SPDC 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 groups who exchanged arms for peace,

and representatives of other organizations.

NCCC Chairman Secretary-1 Lt-Gen Thein Sein and members, NCC Work Committee Chairman Chief Justice U Aung Toe and members, NCC Management Committee Chairman Maj-Gen Lun Maung and members, chairmen and officials of the subcommittees, delegates of political parties, representatives-elect, delegates of national races, delegates of peasants, delegates of workers, delegates of intellectuals and intelligentsia, delegates of State service personnel, and other invited delegates signed the attendance registers at Pyidaungsu Hall and the recreation hall for National Convention delegates.

The Secretary-1 took the helm of the plenary session, while NCCC Secretary Information Minister Brig-Gen Kyaw Hsan acted as MC. The emcee announced the validity of the meeting as 1,070 out of 1,081 delegates were present, accounting for 98.98 per cent.

NCC Work Committee Chief Justice U Aung Toe dealt with the laying down basic detailed principles in respect of the sharing of the executive powers of the self-administered division or region leading bodies out of the sectors of the delegation of executive and judicial powers to be included in the drawing of the State Constitution. (The presentation will be reported later.)

On behalf of the NCC Work Committee chairman, Vice-Chairman Attorney-General U Aye Maung read out matters related to laying down of detailed basic principles concerning the executive power (State service personnel) out of the sectors of the division of executive and judicial powers to be included in the writing of the State Constitution. Then, the session went into recess. (The presentation will be reported later.)

The session resumed at 10.15 am. On behalf of the Work Committee chairman, Secretary U Thaung Nyunt read the matters related to the adoption of detailed basic principles concerning the sharing of judicial power of the judicial sector out of the sectors of the sharing of executive and judicial powers to be included in the writing of the State Constitution. (The presentation will be reported later.)

On behalf of the Work Committee chairman, Member Deputy Minister U Thein Sein read the matters related to the adoption of detailed basic principles concerning the sharing of judicial power out of the sectors of the sharing of executive and judicial powers to be included in the writing of the State Constitution. (The presentation will be reported later.)

The plenary session ended at 11.15 am.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050308_1.pdf

The Union Government upholds and maintains stability, peace, and prevalence of law and order in the country

YANGON, 8 March — The following is the clarification made by Member of the National Convention Convening Work Committee Deputy Minister for Information U Thein Sein, on behalf of the Chairman of the National Convention Convening Work Committee, on Executive Powers of the Union Government 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, yesterday.

Detailed basic principles relevant to the executive branch have been laid down at the previous plenary meetings of the National Convention. As regards the formation of the Union Government, detailed basic principles have also been laid down as follows:

“The Executive Head of the State is the President of the State.”;

“The Union Government of the State shall be formed with the President of the State, Vice-Presidents, Union Ministers, and the Attorney-General of the Union.”;

“The executive power of the State is distributed among the Pyidaungsu, regions and states.”; and

“Self-administrative power shall be distributed to selfadministered areas as stipulated by the State Constitution.”

In line with the detailed basic principles already laid down, it is necessary to distinguish the executive power of the Union Government from that of the region or state governments. Likewise, the self-administrative powers of the self-administered area leading bodies should also be distinguished.

At the outset, I would like to present the Work Committee’s assessment concerning the executivepower that should be vested in the Union Government, and the duty and rights relevant to that power.

According to the detailed basic principles already laid down, the Head of State, who is the President of the State, shall lead the Union Government. This being the case, the Union Government should be vested with a variety of executive powers, and the duty and rights relevant to these powers.

So broad is the executive power of a nation. Executive power is involved in everyday functions. The routine jobs the people do daily cannot escape administration. The administrative tasks of the State are so huge and broad that the Pyidaungsu Hluttaw is to introduce necessary laws to enable the Union Government to exercise its executive powers effectively.

No matter how different the administrative patterns of the world nations are, the governments enact laws that will be consistent with the administrative machinery of their respective countries so that they can carry out the administrative tasks systematically and effectively. In this context, some countries embody two separate legislative lists in their Constitutions: the one to be promulgated by the central legislature and the other by regional legislative bodies.

The duty and rights relevant to administration are precisely stipulated without loopholes in the Constitutions of world nations so that the government’s executive power can extend to every matter. Yet, there arise some necessities and weaknesses. Provisions are in advance embodied to address such consequences when they arise. That sort of provisions are that matters embodied in the legislative list of the Constitution fall within the executive power.

It is found that the Constitutions of the nations formed in Union System embody separate legislative lists in them, but the nations formed in Unitary System do not enlist the legislative lists separately in their Constitutions. Moreover, it is also found that in connection with the legislation,separate provisions are embodied in the Chapters concerned of the Constitution.

As regards the role of the Union Government, it is stated in Section 122 of 1947 Constitution that “Subject to the provisions of this Constitution, the executive authority of the Union extends to the matters with respect to which the Parliament has power to make laws.”

When the Constitutions of some neighbouring countries, it is found that the executive authority of the Union Government, if it is subject to the provisions of the Constitution, extends to the matters with respect to which the Parliament has power to make laws.

According to the provisions of the constitution there will be the Pyidaungsu Hluttaw comprising the Pyithu Hluttaw and the Amyotha Hluttaw, and the Region or State Hluttaw. Therefore, detailed basic principles have been laid down on the delegation of legislative power to them distinguishing the Union Legislative List from the Region or State Legislative List. The Union Legislative List constitutes such major sectors as defence and security; foreign affairs; finance and planning; economy; agriculture and livestock breeding; energy, electricity, mining and forestry; industry; transport, communication and construction; social affairs; management; and judiciary.

Detailed legislative matters are mentioned in each of these major sectors. Among the matters mentioned in the Union Legislative List are administrative matters to be taken charge of by the Union Government.

To carry out its duties and functions more effectively, the Union Government is to designate ministries as necessary and assign duties to them. The Pyidaungsu Hluttaw is to enact necessary laws to make such efforts more effective and fruitful. To be able to do so, the Pyidaungsu Hluttaw is vested with the power to make laws in the Union Legislative List. Only then is the Union Government, in carrying out its duties and functions, to submit bills necessary for the benefit of the Union to the Pyidaungsu Hluttaw. Only then is the Pyidaungsu Hluttaw to enact necessary laws in accord with the provisions mentioned in the constitution. It can be found that the duties and rights of the Union Government, which is an administrative organ, correlate with those of the Pyidaungsu Hluttaw, which is a legislative organ.

In connection with the executive power of the Union Government, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:

“Subject to the provisions of the Constitution, the executive power of the Union, extends to the matters with respect to which the Pyidaungsu Hluttaw has power to make laws.”

I will now continue the Work Committee’s observation concerning the executive authority of the Union that is vested in the President of the State.

According to the detailed basic principles already laid down, the President of the State, who is also the Head of State, shall lead the Union Government. It has been mentioned above that the Union should be vested with a variety of executive authority. The person who will exercise the executive authority of the Union Government should be the President of the State who will lead the Union Government. Only then will it be in accord with the detailed basic principles already laid down.

It is natural and appropriate that the executive power is vested in the Head of State, who is the highest executive authority of the nation. However, it is necessary to ensure that such an executive power does not serve as an obstacle to the rights of the legislative body like the Pyidaungsu Hluttaw. Only then will any clash between the legislative power and the executive power, which are among the three sovereign powers of the State, be avoided.

As regards the executive authority of the Union that is vested in the President of the State, it is stated in Section 59 of 1947 Constitution that “Subject to the provisions of this Constitution, the executive authority of the Union shall be vested in the President; but nothing in this section shall prevent the Parliament from conferring functions upon subordinate authorities, or be deemed to transfer to the President any functions vested in any court, judge, or officer, or any local or other authority by any existing law.”

The legislative sector of the constitution will constitute the Pyidaungsu Hluttaw which comprises the Pyithu Hluttaw and the Amyotha Hluttaw, or the Region or State Hluttaw, or the self-administered division leading body or the self-administered zone leading body.

Similarly, in the executive sector, the administrative machinery will be installed with the Union Government, the Region or State government, or the self-administered division leading body or the self-administered zone leading body. Powers will be delegated to the respective authoritative organs at different levels. In doing so, the Pyidaungsu Hluttaw is responsible to enact laws as necessary. There are many provisions that have vested the functions in either a certain authoritative body or a certain authority by the existing laws.

In connection with the matter that the executive power is vested in the President of the State, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:

“Subject to the provisions of the Constitution, the executive authority of the Union, shall be vested in the President; but nothing in this section shall prevent the Pyidaungsu Hluttaw from conferring duties and functions upon any authoritative body, or any person in authority, or be deemed to transfer to the President of the State any functions vested in any authoritative body concerned, or any other person in authority concerned by existing laws.”

I would like to continue the Work Committee’s observation concerning the adoption of detailed basic principles on taking the executive action of the Union Government in the name of the President of the State, and making the functions of the Union Government on behalf of the President of the Sate as effective as those of the President of the State.

According to the detailed basic principles already laid down, the President of the State, who is the Head of State, shall lead the country. It is natural and appropriate that the executive power is vested in the Head of State, who is the highest executive authority of the nation. However, it is found insufficient in a pragmatic way that the President of the State alone is responsible for all the matters related to administration. But nowadays, when it comes to signing international treaties, it can be found that ministers concerned or officials concerned, on behalf of the Head of State, sign them.

According to the constitution that will come into existence in the future, Union ministers who are members of the Union Government led by the President of the State, on behalf of the President of the State, promulgate orders, directives and so on.

Supposing that the President of the State alone has the right to ratify and release such things, the administrative machinery will operate at a slow pace. There may arise some ambiguities over the legitimacy of signature put by ministers of the Union government.

In Section 121 of 1947 Constitution, the paragraph (1) prescribes “All executive action of the Union government shall be expressed to be taken in the name of the President.”; the paragraph (2) “Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.”; and paragraph (3) “The President shall make rules for the transaction of the business of the Union Government, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the President is by or under this Constitution required to act in his discretion.

Without prejudice to the generality of the foregoing provisions the allocation of business may be regionwise as well as subjectwise.”

Article 80 of 1974 Constitution of Myanmar prescribes that “The Chairman of the Council of State shall sign the laws, rules, and resolution passed by the Pyithu Hluttaw as well as orders promulgated by the Council of State. These shall be promulgated in the official Gazette”. The

Chairman of the Council of State ratifies the laws promulgated in accord with this Article.

Practically, it is not easy enough for the Chairman of the Council of State to ratify every law promulgated by the Council of State.

This being the case, the Article 80 was defined in the resolution No 27-4/75 of the fourth meeting of the first Pyithu Hluttaw held on 21-10-1975 as follows:

Resolution No 27-4/75 Resolution on the definition of the term “Orders promulgated by the Council of State” mentioned in Article 80 of 1974 Constitution.

With respect to the term “orders promulgated by the Council of State” mentioned in Article 80 of the Constitution of the Socialist Republic of the Union of Burma, it is defined at the sixth-day session of the fourth meeting of the first Pyithu Hluttaw held on the second waxing of Thidingyut, 1337 ME (21-10-1975) as the orders promulgated in connection with the following matters:

(a) Summoning the Hluttaw meeting;

(b) Declaration of the state of emergency;

(d) Limiting or withdrawing citizen’s freedom and right as necessary;

(e) Interpretation of Constitution by the Hluttaw;

(f) Dissolving of a people’s council and giving duty for election for a new people’s council according to the decision of the Hluttaw;

(g) Orders which shall have the force of law;

(h) Amnesty and punishment relating to the public;

(i) Promulgation of titles and medals of honour;

(j) Council of State’s decisions, which must be promulgated as order;

According to the above interpretation by the Pyithu Hluttaw, it is found that matters which the Chairman of the Council of State himself was to ratify were designated, and that orders relevant to other matters decided by the Hluttaw and orders relevant to other matters promulgated by the Council of State can be ratified by any one of responsible personnel.

The administrative tasks of the Union Government may fall into the tasks to be implemented by the President of the State himself and those to be implemented by officials concerned including ministers of the Union Government in the name of the President.

According to above observation, the President of the State should be vested with the power to promulgate necessary rules and regulations, and procedures to ensure the smooth running of administration machinery and legitimacy.

Moreover, the President of the State should be vested with the power to allocate his duties and functions regionwise or subjectwise.

In connection with undertaking administrative tasks of the Union Government in the name of the President; making the functions of the Union Government on behalf of the President of the Sate [sic] as effective as those of the President of the State; and allowing the President to allocate his duties and functions regionwise or subjectwise, it is therefore necessary to discuss and suggest as to whether or not detailed basic principles should be laid down as follows:

“All executive action taken by the Union government shall be expressed as done in the name of the President.

Orders and instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President. In addition, the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it was not done by the President.

The President shall make rules for the transaction of the business of the Union Government, and for the allocation of the said business among the ministers of the Union government or to the official responsible under a certain law, except matters conferred on him by this Constitution to act in his own discretion.”

“Without prejudice to the generality of the foregoing provisions, the allocation of business by the President may be regionwise as well as subjectwise.”

I will now continue the Work Committee’s observation concerning the responsibility of the Union Government for the upkeep of stability, peace, and rule of law in the country.

Since holding accountable for the executive duty of the State, the Union Government is to endeavour to ensure the smooth running of administration machinery. Only then will the all-round development tasks of the State be successful. In this process, the Union Government is to maintain the stability, regional peace and the rule of law in the country. Only when stability reigns the country will economy become stable, whereupon businesses of the State will thrive. Likewise, national stability will give rise to social stability, whereupon the tasks will be undertaken for health and fitness of the entire people, higher education level, and preservation of cultural heritage.

Stability of the State depends on national consolidation. To consolidate the national unity is the most crucial national concern. In other words, with the further consolidation of national unity comes success in promoting the interests of the country and the people. The Union Government will be able to achieve the consolidated unity from making efforts to bridge the gap as much as possible in the development tasks for all the national people residing in the Union.

The Union Government is responsible to crush a variety of alien attempts of some countries designed to destroy national unity. If the Union Government can consolidate national unity, it will also be able to maintain the stability of the State. Maintaining the stability of the State is

maintaining the regional stability and the rule of law. They correlate each other.

The Union Government is to work hard to turn the country into a new state developed in all sectors by making most of rich natural resources and economic resources. Moreover, continued efforts are to be made to create transitional conditions from the agricultural to industrial nation,

and then to a nation developed in all sectors. Instability, weak national unity, and subversive acts committed by alien saboteurs can be detrimental to business transactions as well as to domestic and foreign investment. It is therefore necessary to deter such destructive acts with constant vigilance so that effective measures can be taken for all-round development tasks.

As its prime task for ensuring the stability, regional peace and the prevalence of law in the country, the Union Government is to make continued efforts to create favourable conditions that can be of help for the smooth running of administration machinery as well as for the establishment of the country into one developed in all sectors.

Of the detailed basic principles already laid down as regards the citizens’ responsibilities, one principle reads “Public peace and tranquillity and prevalence of law and order is the responsibility of every citizen.” The Union Government needs to make constant efforts to uphold and maintain the stability, peace and prevalence of law and order with the duty-conscious participation of citizenry.

It is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:

“The Union Government upholds and maintains stability, peace, and the prevalence of law and order in the country.”

Now, I will present the study on the laying down and implementation of the policies which is a task of the Union Government.

A nation must have a government for her to be in accord with her required characteristics. The people need to know the policies, projects and work programmes stating the way the Government is going to lead, defend, and administer the nation, the Government’s stance in foreign relations, its plans and systems to develop the nation and its priority tasks. The Government will have to clearly and officially inform about policies, projects and work programmes to world nations too.

The laying down of the policies, projects and work programmes should be in line with the political, administrative, economic and social objectives, basic principles and general guidelines stipulated in the Constitution.

The governments of the world countries have to lay down and implement policies, projects and work programmes that conducive to their natural conditions for peace, stability, prosperity and progress.

Those governments should also be aware of the fact that the policies, projects and work programmes are subject to the objectives, basic principles and guidelines contained in the constitution. If a government carries out its task without specific policies and work programmes to

reach the goal, it will never achieve success and stability.

Objectives have already been laid down for the future constitution. The previous sessions of the National Convention have also laid down basic principles to be formulated as basic principles of the State. As the objectives and the already-laid-down basic principles will be contained in the future constitution, the authoritative bodies should uphold them as general guidelines. In this regard, the Union Government, that will undertake the administrative duties of the State will have to lay down the policies within the framework of the State Policy and in addition the policies should be in accord with the stipulations contained in the Constitution.

The main responsibility rests on the Union Government, the administrative body of the State, to successfully materialize its policies in accord with the already-laid-down policies of the State. The Union Government will have to lay down long-term, short-term plans and annual plans in accord with the policies laid down and to systematically implement them. and if needed, it will have to draw and implement special projects.

The Union Government should state the aims of the projects, which are in conformity with the policies laid down, in submitting the long-term, short-term and annual plans to the Pyidaungsu Hluttaw. In doing so, it should present the national economic plans together with the statements on sector-wise targets of the agricultural, fish and meat, forestry, energy, mineral and mining, industrial, electricity, construction, transport and communication, trade, social and monetary sectors of the entire nation and the gross domestic product of the nation attached with other related clarifications.

The Union Government as necessary will have to implement special projects to build highways and bridges, explore and drill oil and gas, and construct dams and reservoirs, together with their estimated budget and explanation on the benefits they will bring after obtaining the approval of the Pyidaungsu Hluttaw by presenting it.

Hence, delegates will have to discuss whether or not to lay down the following basic principle:

“The Union Government shall lay down its policies in accord with the provisions contained in the Constitution. The Union Government shall draw necessary projects in accord with the policies and implement them with the approval of the Pyidaungsu Hluttaw.”

Clarification on Executive Power of Union Government presented on behalf of Chairman of the National Convention Convening Work Committee by National Convention Convening Work Committee Members Deputy Attorney-General Dr Tun Shin and Supreme Court Judge Dr Tin Aung Aye will be published in the newspapers to be issued on 10 March.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050308_2.pdf

The President shall sign laws passed and enacted by the Pyidaungsu Hluttaw after taking action according to provisions of the Constitution Such signed laws shall be promulgated in official Gazette

YANGON, 8 March — The following is the clarification made by Secretary of the National Convention Convening Work Committee U Thaung Nyunt, 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, yesterday.

Now, I will explain the matter concerning the declaration of war and making of peace that should be designated as the powers and functions of the President.

Myanmar has witnessed the World War I and the World War II. The war between one country and another spread to other countries till the breaking out of world wars. If a war breaks out between countries, the people of those countries will face lots of sufferings including death, injury, national destruction and hunger. Because of the atomic bombs that were dropped during the WWII, a large number of victims of the bomb can be seen till at present. Mankind may disappear if another world war erupts at this time when nuclear weapons are developing rapidly. In this regard, the world nations are striving to prevent the eruption of another world war, and ban nuclear and strategic weapons.

The nations are in the process of making collective efforts to prevent occurrence of wars between the countries. Undeclared wars between countries may not be so difficult to end with concerted efforts of other nations. But in a declared war, the carnage may become wider due to participation of allies from both sides. Thus, taking the lessons of the two world wars, the power to declare war and make peace is not vested totally in the hands of the Head of State or Government alone.

A study of the constitutions of various nations shows that there are many different systems of delegating the power to declare war or make peace. Constitutions of certain nations stipulate that the Government can declare war or make peace only with the approval of the parliament or the hluttaw. In some countries their constitutions state that only the parliament or the hluttaw has the power to declare war of make peace. But in some countries, the President can declare war of make peace with the approval of the parliament or the Hluttaw.

The sub para (1) of the article 123 of the 1947 Constitution states, “War shall not be declared and the Union shall not participate in any war save and except with the assent of the Parliament.”

In the article 49 of the 1974 constitution it is stated, “The Pyithu Hluttaw may decide to declare war and to make peace only by a vote of 75 per cent of all its members. The Council of State shall convene an emergency session of the Pyithu Hluttaw should circumstances call for a decision while the Pyithu Hluttaw is not in session.”

The effect of the term “declaration of war and making of peace” is deep and wide and its functions never tolerate even a slight mistake. Thus, it is not appropriate to vest the right to the President alone to declare war or make peace.

The Union of Myanmar always strictly adheres to the five principles of peaceful co-existence laid down at the Bandung Conference. It always observes, with respect, the policy to always maintain cordial relations with the neighbouring nations. It always adheres to the policy of non-interference in others’ internal affairs and is always against aggression of any kind.

The National Convention has already laid down the following basic principles concerning the foreign affairs:

(a) the State practices independent, active and non-aligned foreign policy, aims at world peace and friendly relations with nations, and upholds the principles of peaceful co-existence among nations;

(b) the State never starts any aggression against any nation; and

(c) no foreign troops are permitted to be deployed within the borders of the Union. The basic principles stand witness to the fact that Myanmar’s stance is totally against wars.

Thus, concerning the sector, delegates will have to make discussions and suggestions whether or not to lay down the following detailed basic principles.

The President shall

(a) in coordination with the National Defence and Security Council, formed within the framework of the Constitution, take suitable military action in the face of aggression against the State;

(b) submit the action so taken to the Pyidaungsu Hluttaw for approval if it is in session or call an emergency meeting to present the matter for approval if the Pyidaungsu Hluttaw is not in session.

Here, I will explain the matter concerning the President’s signing of a Bill and enacting it approved by the Hluttaw.

The task of presenting, discussing and passing bills is done by the respective hluttaws. In some countries there are the lower Chamber and the upper Chamber and the two chambers combined is called the Parliament or the Congress. In some countries, they have the Chamber of People’s Deputies and Legislative Chamber, but in some, they have only the Parliament or the hluttaw. Whatever the number the hluttaws may be, generally, except from the Bills designated for presentation to the particular hluttaw, a Bill is presented to and discussed for approval at the prescribed hluttaw. If there are two hluttaws, the hluttaw that has already approved the Bill shall send it to another hluttaw for approval. If there is only one hluttaw, it will discuss and approve the Bill.

The Bill approved by the hluttaws is submitted to the President before being enacted into law. If he agrees, the President signs, approves and promulgates it. If he disagrees, he will send the Bill together with his remarks to the hluttaw where it originated. The hluttaw where the Bill originated discussed the Bill again and take necessary measures in accord with the provisions.

Although the steps in the process of passing a Bill to become a law have not much difference between one nation and another, there are differences of system between the steps. In some nations, the approval method between the two hluttaws is different from one another. In some nations the decision and approval are made by a simple majority through voting and in some, a Bill is approved with the assent of two-thirds of the Hluttaw representatives.

Some countries fixed a period of days during which the President will have to sign the Bill submitted to him. But in some countries the duration is not designated.

The length of duration is also different among the nations. Countries usually adopt systems appropriate to their situation. In some countries the stipulations state that if any Bill is not signed by the President within the prescribed period, the same shall become an Act in the like manner as if he had signed it. Some countries do not include the said stipulation in the law. Generally, they just include a stipulation saying that any Bill passed by the hluttaw should be submitted to the President for approval.

Countries where the President is the Head of State may have differences in legislation, but they have two similar procedures — the passing of a law by the Hluttaw and the signing and promulgation of the law by the President.

Concerning the signing and promulgating of a Bill approved by the Hluttaw, Section 58 of the 1947 Constitution stated, “Every Bill, passed or deemed to have been passed by both Chambers of Parliament, shall require the signature of the President for its enactment into law. The President shall promulgate every law enacted by the Parliament.”

Section 111 of the Constitution stated, “As soon as any Bill shall have been passed by both Chambers of Parliament, it shall be presented to the President for his signature and promulgation as an Act in accordance with the provisions of this section. Save as otherwise provided by this Constitution, every Bill so presented to the President shall be signed by him not later than seven days after the date of presentation. If any Bill is not signed by the President within seven days after the date of presentation, the same shall become an Act in the like manner as if he had signed it on the last of the said seven days.”

Concerning the matter, Section 109 stated, “If one chamber passes any other Bill, and the other Chamber rejects or fails to pass it, or passes it with amendments to which the Chamber where the Bill originated will not agree, the President shall convene a joint sitting of the two Chambers. The members present at the joint sitting may deliberate and shall vote together upon the Bill as the last passed by the Chamber where the Bill originated and upon amendments, if any, which have been made therein by the other chamber, and if the Bill with amendments, if any, is passed by a majority of the total number of members of both Chambers present and voting, it shall be deemed to have been passed by both Chambers.”

The sections contained in the 1947 Constitution show the dimension of the President’s role in passing a Bill to become a law. The sections show that the President has no right to oppose nor amend a Bill submitted to him, but just to sign and issue it, and if there are any disagreements, he shall convene a joint sitting of the two hluttaws. However, if the President finds something to make any amendments, additions or substitutions in the laws passed by the Pyidaungsu Hluttaw, he has the right to inform about this to the Speaker of the Pyidaungsu Hluttaw. This will be discussed in the sector concerned.

Thus, delegates will have to discuss and suggest whether or not to lay down the following basic principle concerning the President’s powers and functions to sign and promulgate the laws passed by the Pyidaungsu Hluttaw:

“The President shall sign the laws passed and enacted by the Pyidaungsu Hluttaw after taking action according to the provisions of the Constitution. Such signed laws shall be promulgated in the official Gazette.”

I have already explained the matters for the delegates to discuss whether or not to lay down detailed basic principles to vest the powers and functions in the President. I will now explain the matter — The President shall not be answerable to any Hluttaw or to any Court for the exercise or performance of the powers and functions vested in him by the Constitution or any of the existing laws.

According to the Constitution, the President is the Head of State who enjoys the respect of the people. Day to day, he will have to exercise and perform the powers and functions vested in him. Thus, the President should be under the protection so that he may not be subject to answering the questions to any Hluttaw or to any Court for the exercise or performance of the powers and functions.

In this regard, the President should not be subject to answering neither the Pyithu Hluttaw, the Amyotha Hluttaw nor the Pyidaungsu Hluttaw, for the exercise and performance of the powers and functions vested in him, or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.

The above-mentioned matters should be stipulated in the Constitution.

Similarly, the President should not be answerable to any court for any of his actions in the exercise and performance of the powers and functions vested in him. The President should not be tried at any court for his actions. The said facts should be stipulated in the Constitution to give protection to the President. Only then, will the President be able to freely and boldly exercise and perform the powers and functions entrusted to him.

But the President should be impeached for betraying the State and violating the stipulations contained in the Constitution, misconduct, and failure to meet the qualifications of the President prescribed in the Constitution, and the impeachment should be made against him in accord with the stipulations contained in the Constitution.

Hence, delegates will have to discuss whether or not to lay down the following principle giving protection to the President for the exercise and performance of the powers and functions vested in him in the interest of the State and the people.

“The President shall not be responsible for answering to any Hluttaw or to any Court for any act done or purporting to be done by him in the exercise or performance of the duties and functions vested in him by the Constitution or any of the existing laws. But the exemption should not concern the stipulations contained in the constitution in connection with the impeachment against him.”

Now, I will present a collection of detailed basic principles concerning the duties and functions of the President in connection with the executive sector based on the studies of the Work Committee as follows:

1. The President shall be responsible to the Pyidaungsu Hluttaw. The Vice-Presidents shall be responsible to the President and also to the Pyidaungsu Hluttaw through the President.

2. To be able to discharge the duties assigned in accord with the Constitution or any of the law, the National Defence and Security Council led by the President shall be formed with the following persons:

1. President

2. Vice-President

3. Vice-President

4. Speaker of the Pyithu Hluttaw

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

11. Minister for Border Affairs.

3. The President shall have

(a) the right of pardon

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

4. The President shall

(a) confer honours and awards

(b) revoke titles, honours and awards.

5. 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 action, the President shall coordinate with the National Defence and Security Council to sever diplomatic relations with foreign nation, and he shall seek the approval of the Pyidaungsu Hluttaw concerning the action taken by him.

6. The President of the State, in accord with law,

(a) shall appoint and recall the diplomats of the country;

(b) shall agree on the appointment of foreign diplomats and send information on the recall

7. The President of the State, in accord with law, shall appoint and dismiss heads of bodies of public services.

8. 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

(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.

9. 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.

10. The President of the State shall communicate with the Speaker of the Pyidaungsu Hluttaw to summon an emergency or special session of the Pyidaungsu Hluttaw if necessary.

11. (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 within 60 days, the President shall call a special session of the Pyidaungsu Hluttaw for 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 submitted 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.

12. The President shall

(a) in coordination with the National Defence and Security Council, formed within the framework of the Constitution, take suitable military action in the face of aggression against the State;

(b) submit the action so taken to the Pyidaungsu Hluttaw for approval if it is in session or call an emergency meeting to present the matter for approval if the Pyidaungsu Hluttaw is not in session.

13. The President shall sign the laws passed and enacted by the Pyidaungsu Hluttaw after taking action according to the provisions of the Constitution. Such signed laws shall be promulgated in th

14. The President shall not be responsible for answering to any Hluttaw or to any Court for the exercise or performance of the duties and functions vested in him by the Constitution or any of the existing laws or for any of his actions in the exercise and performance of these powers and functions. But the exemption should not concern the stipulations contained in the constitution in connection with the impeachment made against him.

I would like to conclude my presentation with the request for the delegates to discuss whether or not the detailed basic principles I have compiled here should be laid down for the matter concerning the President’s powers and functions.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050308_3.htm