PROCEEDINGS OF THE NATIONAL CONVENTION

9 March 2005

From “The New Light of Myanmar” 10 March 2005

Group discussions on compilation of proposals on sharing of executive and judicial powers to be included in framing of State Constitution held

YANGON, 9 March — The discussions on compilation of the proposals of respective delegate groups concerning the explanations made by the Work Committee Chairman on the sharing of executive and judicial powers to be included in the framing of the State Constitution were held at Pyidaungsu Hall and respective places at Nyaunghnapin Camp in Hmawby Township at 9 am today.

Delegate Group of Political Parties

The delegate group of political parties held its group discussion at the meeting hall-1 this morning.Deputy Director U Khin Maung Phyu acted as master of ceremonies and Assistant Director Daw Yin Yin Than as co-master of ceremonies.

The master of ceremonies announced the validity of the discussion with attendance of delegates accounting for 96.99 per cent.

Alternate Chairman U Tun Yin Law of National Unity Party presiding over the discussion gave an opening speech. All the participants discussed compilation of the proposals of seven political parties concerning the explanations made by the Work Committee Chairman on the sharing of executive and judicial powers to be included in the framing of the State Constitution.

Delegate Group of Representatives-elect

The group discussion of the delegate group of representatives-elect was held at the meeting hall 2 at 9 am today. Alternate Chairman U Yaw Aye Hla of Lahu National Development Party chaired the discussion together with members of the panel of chairmen U Maung Gyi of Union Pa-O National Organization and U Law Hsin Kwam of Kokang Democracy and Unity Party. Deputy Director U Maung Maung Phyu Tint and Assistant Director Daw Tin Tin Nwe acted as masters of ceremonies.

The master of ceremonies announced the validity of the discussion with cent per cent attendance of delegates. Alternate Chairman U Yaw Aye Hla of Lahu National Development Party gave a speech. The delegates took part in the discussion to compile the proposals of seven political parties concerning the explanations made by the Work Committee Chairman concerning the detailed basic principals for the sharing of executive and judicial powers to be included in the framing of the State Constitution.

Later, the discussion chairman gave the concluding remarks.

Delegate Group of National Races

The delegate group of national races held the group discussion at Pyidaungsu Hall this morning. Alternate Chairman U Mya Sein of Mandalay Division presided over the discussion with members of the panel of chairmen U Mahn Ohn Maung of Kayin State and U Maung Hla (a) U Hla Myint of Taninthayi Division.

Deputy Director U Than Tun acted as emcee together with Assistant Director U Tin Maung Oo as co-emcee.

The emcee announced the validity of the discussion with attendance of delegates accounting for 98.42 per cent. U Mya Sein of Mandalay Division delivered an opening speech. U Soe Myint of Taninthayi Division read out the notes from explanations made by the Work Committee Chairman on the sharing of executive and judicial powers to be included in the framing of the State Constitution. Next, all the delegates decided to compile a proposal to be submitted to the plenary session of the National Convention. Later, the discussion ended with the concluding remarks by the alternate chairman.

Delegate Group of Peasants

Similarly, the discussion of the delegate group of peasants was held at the meeting hall-4 this =morning. U Kyi Tint of Ayeyawady Division chaired the discussion together with members of the panel of chairmen U Mya Aye of Yangon Division and U Sai Tint Aung of Shan State (North).

Deputy Director U Myint Kyaing and Assistant Director Daw Myint Sein acted as MC and co-MC.

The master of ceremonies announced the validity of the discussion with cent per cent attendance of delegates. U Kyi Tint of Ayeyawady Division made a speech. Next, they held a meeting to form a proposal compilation group to submit the proposal of the delegates of peasants concerning the detailed basic principles for the sharing of executive and judicial powers to be included in the framing of the State Constitution to the plenary meeting. The discussion ended with the concluding remarks by the alternate chairman.

Delegate Group of Workers

Likewise, the Delegate group of Workers held its group discussion at the meeting hall-9 this morning. Deputy Director U Zaw Win and Assistant Director U Aung Win emceed the discussions.

The emcee announced the validity of the discussion with cent per cent attendance of delegates.

Alternate Chairman U Khin Maung Aye of Sagaing Division, presiding over the discussion together wih members of the panel of chairmen U Kyaw Win Tun of Mandalay Division and Dr Myo Thant Tin of Yangon Division, gave an opening speech.

Member of the panel of chairmen U Kyaw Win Tun of Mandalay Division explained the notes from the explanation of the Chairman of the National Convention Convening Work Committee on the sharing of executive and judicial powers to be included in the framing of the State Constitution.

Next, all the participants discussed the submitting of proposals of the delegate group of workers.

Afterwards, the discussion chairman gave the concluding remarks.

Delegate Group of Intellectuals and Intelligentsia

At the meeting hall-6, Alternate Chairman U Hla Myint chaired the discussion of the Delegate Group of Intellectuals and Intelligentsia together with members of the panel of chairmen Dr Thein Nyunt (Nyunt Wai-Katha) and Dr U Thein Oo Po Saw. Deputy Director U Than Win and Assistant Director U Nyein Myint acted as masters of ceremonies.

The master of ceremonies announced the validity of the discussion with attendance of delegates accounting for 96.43 per cent. Alternate Chairman U Hla Myint gave a speech. Next, the delegates coordinated to form the proposal compilation group. Later, the meeting chairman gave the concluding remarks.

Delegate Group of State Service Personnel

The group discussion of the Delegate Group of State Service Personnel was held at the meeting hall-7 this morning. Alternate Chairman Dr Daw Myat Myat Ohn Khin presided over the discussion together with members of the panel of chairmen U Myat Ko and U Hla Tin. Deputy Director U Htay Win and Assistant Director U Htein Min acted as emcees.

The emcee announced the validity of the discussion with attendance of delegates accounting for 98.17 per cent. Dr Daw Myat Myat Ohn Khin spoke on the occasion. Next, U Myat Ko read out the explanation of the Work Committee Chairman concerning the detailed basic principles for the =sharing of executive and judicial powers to be included in the framing of the State Constitution.

They took part in the discussion to form the proposal compilation group. The group discussion ended with the concluding remarks by the alternate chairman. Next, the members of the panel of chairmen and members of the proposal compilation group held a coordination meeting.

Delegate Group of Other Invited Persons

The Delegate Group of Other Invited Persons this morning held the group discussion presided by Alternate Chairman U Paw Laik Kham together with members of the panel of chairmen U Aung Hkam Hti and Dr Manan Tu Ja.

Deputy Director U Aung Kyi and Assistant Director U Win Myint acted as MC and co-MC. The MC announced the validity of the discussions with attendance of delegates accounting for 98 per cent.

First, U Aung Hkam Hti gave an opening address. Next, Dr Manan Tu Ja explained the compilation of the proposals of the delegates of other invited persons concerning the detailed basic principles for sharing of executive and judicial powers to be included in the framing of the State Constitution. All the delegates participated in the discussions. Later, U Aung Hkam Hti gave the concluding remarks.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050309_1.pdf

Union Government shall submit bill concerning matters Pyidaungsu Hluttaw can enact into law within framework of provisions of Constitution, and shall submit them to Pyidaungsu Hluttaw

YANGON, 9 March — The following is the clarification made by Member of the National Convention Convening Work Committee Deputy Attorney-General Dr Tun Shin, 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, on 7 March.

I will now present the Work Committee’s studies on the drawing of the annual budgets of the Union, and the drawing of the bills on budgets that are included in the task of the Union Government.

The Union Government has the responsibility to draw annual budgets as it is discharging the duties of the security, administration, economic, social affairs, road transport, etc of the State. To draw up a budget, the Union Government will have to calculate and estimate the annual revenues of the State, and the expenditures for the functions, long-term, short-term and annual plans, and special projects of the State. It will have to earmark the amount of cash it is going to provide or distribute to region or state governments that will emerge in accord with the Constitution, for special provisions to the regions and states, and for disbursement of loans to them.

A study on the constitutions of some of the nations shows that only the government compiles the annual budgets of the State and draws bills on budget and submits them to the legislative Hluttaw for approval.

The sub para (1) of Section 125 of the 1947 Constitution states, “The government shall prepare estimates of receipts and estimates of expenditure of the Union of each financial year, and shall present them to the Chamber of Deputies for consideration.” Similarly, the sub para (b) of Article 88 of the 1974 constitution states “The Council of Ministers shall draw up, after making necessary adjustments, and submit the annual budgets to the Pyithu Hluttaw through the Council of State.” The sub para (b) of Article 89 of the same Constitution also states, “The Council of Ministers shall be solely responsible for submission of the bills on budgets to the Pyithu Hluttaw through the Council of State for enactment into law.” In this regard, the above-mentioned task should be included in the duties of the Union Government that are stipulated in the Constitution.

The Union Government will have to draw the annual budgets of the Union in accord with the stipulations contained in the Constitution, laws, bylaws, provisions, rules, orders and directives. In doing so, it may draw the revenue sector under two headings — the current income and the capital income; and the expenditure sector under two headings — the current expenditure and the capital expenditure. In addition, the evaluation of the loans from abroad and foreign aids should be included. The Union Government will have to estimate and earmark budgets for the tasks, short-term and long-term plans, annual plans, and special projects that are under implementation in the nation as well as the tasks, long-term, short-term, annual plans, and special projects that are to be launched in the current budget year.

The region and state governments will be formed in accord with the Constitution. The region and state governments may also draw their own annual budgets. If any deficit shows between the income and expenditure in the budges of the region and state governments, they may need provisions or loans from the Union Government. The amount of provisions to the region and state governments, the amount of aids for special cases, and the amount of cash for particular tasks or projects should be earmarked in the annual budget of the Union Government.

The Union Government, after coordinating with the Financial Commission, will have to draw the estimated accounts. The President and the chief ministers of regions and states will play a key role in the Financial Commission. After making thorough discussions at the Financial Commission, the estimated accounts of the Union and the regions and states will have to be approved.

Based on the estimated accounts acquired after making coordination at the Financial Commission, the Union Government may draw the final bill on annual budget of the Union including the accounts on the estimate allotments for the region and state governments.

Based on the estimate account drawn in coordination with the Financial Commission, the Union Government may draw the bill on the Union budget, stating the amounts of additional funds, financial aids for special issues, and loans set aside for the regions and states, in accord with the rules, and may submit the bill to the Pyidaungsu Hluttaw within the framework of the stipulations of the Constitution for approval.

Hence, the delegates will have to discuss whether or not the following detailed basic principles concerning the drawing of the annual budget of the Union Government and the drafting of the bill on Union budget should be laid down.

“Based on annual budget of the Union, drawn after coordinating with the Financial Commission, the Union Government shall draft the bill on Union budget, and shall submit it to the Pyidaungsu Hluttaw in line with the stipulations contained in the Constitution for approval.”

Now, I will explain the study on the ways the Union Government can act upon the matter if the Pyidaungsu Hluttaw cannot approve the bill on the Union budget presented by the Union Government before the end of the fiscal year.

The Union Government, after coordinating with the Financial Commission, will have to submit the bill on the annual budget of the Union to the Pyidaungsu Hluttaw for approval before the end of fiscal year. The Union Government has the duty to run the State administrative machinery without any interruptions. As the Union Government has to work in accord with the State objectives for harmonious progress of the entire nation, there may arise a situation in which it cannot complete the task of discussing the matter on the bill on the Union budget at the Pyidaungsu Hluttaw before the end of the respective fiscal year.

During such a situation, the Union Government may have the right to continuously use the funds of the budget in accord with the stipulations of the Constitution to run the administrative machinery as usual. The Union Government should have the right to constantly pay the monthly salaries and other expenditures of the State authoritative bodies, staff salaries and other expenditures of the service personnel organizations, expenditures liable to be paid in accord with the international treaties and agreements, and current expenditures from the funds of the State budget in accord with the limits contained in the Constitution. It should have the right to use the funds within the framework of the enacted budget laws that was last approved by Pyidaungsu Hluttaw.

The constitutions of some of the world nation state, if the legislative hluttaw concerned cannot approve the bill on budget submitted by the government before the end of fiscal year, the government shall have the right to use the funds of current expenditure allowed within the framework of the previous year’s budget law, in line with the stipulation of the Constitution. Only then will the government be able to drive the administrative machinery without losing acceleration.

If the legislative Hluttaw approves and enacts the budget law only after the end of fiscal year, necessary balancing of accounts should be made for the current expenditures that was used in line with the stipulations contained in the Constitution, the existing laws, bylaws, rules and regulations, orders or directives, to be in conformity with the stipulations stated in the budget law approved later.

In submitting a bill on budget by the Union Government to the Pyidaungsu Hluttaw, for certain reasons, there may arise the situation, in which, the Pyidaungsu Hluttaw cannot approve and issue the bill before the end of fiscal year. The National Convention Convening Work Committee views that in this situation, the Union Government should be delegated with the right to use the funds within the allotment of the current expenditure included in the latest-enacted Union budget law of the Pyidaungsu Hluttaw within the framework of the stipulations stated in the Constitution, so as not to cause a halt in the administrative machinery and to continue its functions.

Hence, delegates will have to discuss whether or not the following basic principle concerning the Union Government’s right in a situation in which the Pyidaungsu Hluttaw fails to enact the budget law before the end of fiscal should be laid down:

“The Union Government shall have the right to use the funds within the allotment of the normal expenditure included in the latest-enacted Union budget law of the Pyidaungsu Hluttaw, if the Pyidaungsu Hluttaw cannot approve and issue the Union Government-submitted bill before the end of fiscal year.”

As I have already explained that the Union Government can directly submit the bill on Union budget only to the Pyidaungsu Hluttaw, I will continue to present the study on matters concerning the right to present other bills.

The Union Government, after drawing a bill, will have to put forward it together with the related explanation to the Speaker of the Pyidaungsu Hluttaw. After studying its kind, the Speaker will have to send it to the Pyithu Hluttaw or the Amyotha Hluttaw for further discussions.

I have already explained to lay down a detailed basic principle, which states, “Subject to the provisions of the Constitution, the executive authority of the Union extends to the matters with respect to which the Pyidaungsu Hluttaw has power to make laws.”

In this circumstance, the Union Government, if needs to enact law concerning the matters put on the Union legislative list, should write bills and present them to the Speaker of the Pyidaungsu Hluttaw in accord with the provisions of the Constitution. It will enact a law only with the assent of the Pyidaungsu Hluttaw.

The Union legislative list includes the defence and security sector, foreign affairs sector, finance and planning sector, agricultural and livestock breeding sector, economic sector, energy, electric power, mining and forestry sector, industrial sector, transport, communication and construction sector, social sector, management sector, and judicial sector. The detailed basic principles have already been laid down sector-wise. In the finance and planning sector it has stated the type of taxes. Hence, the Union Government have the right to write bills concerning the matters stated sector-wise and all type of taxes mentioned in the sector, and to present them to the Pyidaungsu Hluttaw in line with the provisions of the Constitution.

According to the procedure, members of the Union Government will have to present the respective bills, on behalf of the Union Government. According to the Constitution, the Union Government members shall not be the hluttaw representatives. And if they are Hluttaw members, it is assumed they have already resigned from the Hluttaw member as soon as they have become a member of the Union Government. As they are not the Hluttaw representatives, they should have the right to attend Hluttaw meetings, presenting bills, and participating in the discussions. Because of the requirement, the proviso concerning the rights will be included in the respective chapters.

When the Union Government has come to undertake the executive power of the State in accord with the Constitution, it will discharge the duty of writing and submitting bills for amendments, revoking laws and drafting and presenting new bills after scrutinizing the laws that are no longer suitable to the changing conditions, the laws that are not in use for a long time, and the laws, which have become unnecessary for use, in addition to the task of writing bills for the matters containing in the Union legislative list,Here, the delegates will have to discuss whether or not to lay down the following basic principles concerning the right of the Union Government to write and submit bills:

“The Union Government shall submit the bill concerning the matters the Pyidaungsu Hluttaw can enact into law within the framework of the provisions of the Constitution, and shall submit them to the Pyidaungsu Hluttaw.”

Now is the turn to explain the study on the matters in connection with management, guidelines, supervisions, and inspection to be conducted by the ministries of the Union Government for their subordinate departments and organizations to carry out their work in accord with the law. The Union Government will have to distribute and delegate its executive powers to ministries sector-wise. The ministries will have to distribute their executive duties to government departments and organizations that are under their management in accord with law.

Generally, the powers and functions of the Union Government originates in the provisions of the Constitution. According to the laws to be enacted within the framework of the stipulations of the Constitution and the laws that will be enacted in connection with the matters included in the Union legislative list, the Union Government will have the tasks which needs collective responsibility and the ministry-wise responsibilities. Moreover, when the Constitution is ratified and adopted, the Union Government and the ministries may continue to discharge the duties assigned to them under the existing laws.

Concerning the matters put on the Union legislative list that are included in the Constitution, the Union Government may have the right to write bills that are in conformity with the changing situations, and to submit them to the respective hluttaws. The Pyidaungsu Hluttaw comprising Pyithu Hluttaw and the Amyotha Hluttaw will have to approve and enact the laws.

The Union Government, according to the Constitution or the existing laws, exercising the functions vested in it, will have to assign duties to the ministries, the government departments and organizations as necessary in implementing its tasks. In discharging duties assigned to them, administrative government departments at different levels will have to observe bylaws, procedures, rules, principles, orders and directives issued by the Union Government or the ministries on occasion.

The ministry-wise management laws will also be included. The ministries, with the consent of the Union Government, may implement the matters concerning the amendment of laws, enactment of new laws and revoking of laws after submitting them to the Pyidaungsu Hluttaw. To realize the aims of the laws concerning the management of ministries, and for them to have effect, the ministries may issue necessary bylaws, procedures, principles, rules, orders and directives, and make their subordinate government departments observe them.

The Union Government and every Union ministry may give constant supervision to enable the subordinate government departments and organizations to work in accord with the provisions of the Constitution and the existing laws. To do so, the Union Government and the ministries are required to make the subordinate government departments and organizations timely submit their formal reports and special reports, to make field study tours and to give necessary guidelines.

The ministries of the Union Government will have to inspect their subordinate governments and organizations to see whether they are working in accord with the provisions of the Constitution and the bylaws, procedures, orders and directives issued within the framework of the Constitution or not. If the ministries find any failure of the subordinate government departments and organizations to observe the bylaws, procedures, orders and directives, the ministries have to make remedies and give directives as necessary. The ministries, in accord with the staff rules and regulations, will have to take departmental action against any act of breaking of the rules and regulations. By doing so, the functions of the ministries and their subordinate government departments and organizations and their exercise of the granted rights will be in accord with the law and will serve the interest of the Union and citizens.

Hence, concerning the rights of the ministries of the Union Government to manage, guide, and supervise their subordinate government departments and organizations in accord with the law, the delegates will have to discuss whether or not the following detailed basic principle should be laid down:

The ministries of the Union Government shall manage, guide and supervise their subordinate government departments and organizations to ensure that the said subordinate bodies are conducting their functions in accord with the stipulations of the Constitution and the existing laws.

Now I will present the study on the coordination of the tasks of the region governments, the state governments and the self-administered area leading bodies, which should be designated as the duty of the Union Government, to ensure effectiveness and success in implementing the tasks.

In the already-laid-down basic principles to write the Constitution, the basic principles — “The state is constituted by Pyidaungsu (Union) system”, “The State is delineated and constituted with the existing seven divisions as the seven regions and existing seven states as the seven states”, “The Regions and States are of equal status and authority”, and “The executive power of the State is distributed among the Pyidaungsu, regions and states; and self administerative power is distributed to self-administered areas as stipulated by the State Constitution” — have already been laid down.

The Union Government is to make strenuous efforts to ensure proportionate development in the entire Union, sufficiency in the food, clothing and shelter needs of all Union-dwellers and their higher living standard in building the country with Union system. Despite the differences in population, economic opportunities, resources, transport and living standard, region governments and state governments are to cooperate and coordinate with the Union Government for equitable development among themselves.

In like manner, the self-administered area leading body is to cooperate and coordinate with the region government concerned or the state government concerned for the all-round development of the people living in the self-administered area.

The region governments, the state governments and the self-administered area leading bodies are to draw long and short-term and annual plans for implementing such tasks as economy, social affairs, education, health, development affairs and transport in their respective regions.

In this context, it is assumed that region governments, or state governments, or self-administered area leading bodies will be in no position of achieving remarkable success as much as they should if they carry out development tasks separately on their own in their regions. Only when they take combined and coordinated measures among themselves or with the Union Government will the work projects and plans take full shape.

In case some regions and states are lagging behind in terms of development while other regions and states are enjoying prosperity, and in case border areas and self-administered zones are lagging behind in terms of development, the Union Government ought to make concerted and coordinated efforts to ensure a proportionate development in all sectors across the Union.

The Union Government is to make combined and coordinated efforts to ensure the supply of necessary materials, the employment of required staff, intellectuals and intelligentsia, the dissemination of technologies, and the provision of cash grant, special cash assistance and loans between the departments of the Union Government and region or state governments so as to enable the region government, the state government and the self-administered area leading body to effectively and successfully carry out such work projects in their respective regions as agriculture, construction of dams and reservoirs, establishment of industries, undertaking of business transactions, education, health, social tasks, development affairs, and construction of roads and bridges. Only the continued efforts made through coordination promise a proportionate development across the Union.

In connection with concerted and coordinated efforts to effectively and successfully implement work projects by 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:

“The Union Government cooperates and coordinates with the region government, the state government, and the self-administered area leading body to enable them to effectively and successfully carry out their tasks.”

Of the detailed basic principles laid down at the National Convention in connection with general provisions, one principle reads “A Constitutional Tribunal shall be set up to interpret provisions of the State Constitution; to scrutinize whether or not laws enacted by the Pyidaungsu Hluttaw, the Region or State Hluttaw, and functions of executive authorities of the Pyidaungsu, regions, states and self-administered areas are in conformity with the State Constitution; to decide on disputes in connection with the State Constitution between the Pyidaungsu and regions, between the Pyidaungsu and states, between regions and states, among regions, among states, between regions or states and self-administered areas and among self-administered areas themselves; and to perform other duties prescribed in the State Constitution.”

Moreover, the National Convention has laid down detailed basic principles for the Chapter ‘State Structure’ on how to deal with and settle the matters like the re-delineation of the territorial boundary of the Union; the re-delineation of the territorial boundary of a region or a state; and the re-delineation of the territorial boundary of a village, a village-tract, a ward, a town, and a township or a district should such disputes arise over the delineation of territorial boundary.

It is therefore necessary to solve the disputes over the delineation of territorial boundary among regions, states and self-administered areas in accord with the provisions embodied in the Constitution.

I will continue the matters related to some disputes not stated in the above-mentioned disputes. In carrying out the duties and functions vested in region governments, state governments and the self-administered area leading bodies according to the Constitution, there may sometimes arise disputes over administration between regions and states, among regions or states, between regions or states and self-administered areas, or among self-administered areas.

Likewise, disputes may arise over administration between regions or states and Union territories, or between self-administered areas and Union territories. For instance, they are disputes over cultivation on the alluvial island; disputes over maintenance and utilization of dams and reservoirs and supply of water; disputes over the location of jetties; disputes between development affairs committees over contiguous areas; disputes over taxation; and disputes over shared utilization of irrigation water and river water.

Except the constitutional disputes and the disputes over re-delineation of territorial boundary, the Union Government is to make concerted efforts through coordination to settle the disputes over administration among regions, states or self-administered areas, those between regions or states and Union territories, and those between self-administered areas and Union territories. The Union Government is to adopt the procedures to solve through coordination in case of administrative disputes.

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

“The Union Government, save constitutional disputes and the disputes over the re-delineation of territorial boundary, shall —

(a) cooperate, coordinate and make decisions if necessary on disputes over administration between regions and states; among regions; among states; between regions or states and self-administered areas; and among self-administered areas; and

(b) cooperate, coordinate and solve the disputes over administration between regions or states and Union territories and between self-administered areas and Union territories; and make decisions if necessary.”

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050309_2.htm

By exercising the legislative power, Pyidaungsu Hluttaw shall have the right not only to enact laws considered necessary for the State but also to make necessary decisions in the interest of the State

YANGON, 9 March — The following is the clarification made by Member of the National Convention Convening Work Committee Supreme Court Judge Dr Tin Aung Aye, 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, on 7 March.

I will continue what the Work Committee has observed in connection with the duties and functions to be vested in the Union Government to form service organizations as necessary, to set the responsibilities of such organizations, and to appoint the required staff.

In connection with the executive authority of the Union Government, the suggested principle to serve as the base is: “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 Pyidaungsu Hluttaw has power to make laws.” The Union Legislative List embodied in the Constitution has categorized such major sectors as defence and security; foreign affairs; finance and planning; agriculture and livestock breeding; economy; energy, electricity, mining and forestry; industry; transport, communication and construction; social affairs; management; and judicial affairs. Detailed 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. I have already mentioned them.

The Union Government is to conduct the duties and functions vested in it according to the provisions of the Constitution, or according to the laws which are still in effect by the time the Constitution comes into force, or according to the laws enacted by the Pyidaungsu Hluttaw in connection with the matters mentioned in the Union Legislative List.

Therefore, the Union Government is to delegate the duties and functions vested in it in accordance with law to ministries to enable them to act on its behalf. As is known to all, a detailed basic principle has already been laid down that the President of the State shall designate the Union Government ministries as necessary with the approval of the Pyidaungsu Hluttaw, and can make changes in and addition to the designated ministries.

The Union Government ministries should have the right to form required departments and enterprises in accordance with law and to distribute the powers and functions delegated to them according to law to enable such departments and enterprises to act on their behalf. Only then can the tasks be implemented effectively and successfully. The Union Government should have the right to form Union-related service organizations as necessary in establishing departments and enterprises.

In establishing departments and enterprises, which are Union-related service organizations, for respective ministries, the Union Government must be empowered to allocate duties and functions as necessary. Only then can the responsibilities be carried out and the rights be exercised smoothly.

The Union Government should also have the right to employ the required number of staff in establishing the Union-related service organizations. In the employment of staff, duties and functions should be distributed to respective service organizations for different levels of staff. Rules and regulations have to be set for the matter of employment. The authoritative body responsible for employment needs to promulgate rules and regulations so as to ensure uniformity in the practice of their powers and functions. It will be necessary for the Union Government to entrust the heads of the authoritative bodies concerned with the right to employ staff for the Union-related service organizations in accordance with law. In connection with the establishment of service organizations and the employment of staff by 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:

The Union Government, in accordance with law, shall —

(a) constitute Union-related service organizations as necessary, and stipulate the duties and functions for such organizations; and
(b) appoint the required number of staff.

I will continue what the Work Committee has observed in connection with the duties and functions of the Union Government to realize the decisions made by the Pyidaungsu Hluttaw and to submit the reports on the entire affairs of the State to the Pyidaungsu Hluttaw on an occasional basis.

The detailed basic principle has been laid down that the President of the State, who is the Executive Head of State, and the Vice-Presidents should not be the representatives of any Hluttaw and that even if they are, they will be deemed to have resigned from the seat in the Hluttaw as of the date they are elected President or Vice-President. Likewise, detailed basic principles have also been laid down that the persons appointed as Union Ministers or the Attorney-General of the Union by the President with the approval of the Pyidaungsu Hluttaw should not be the representatives of any Hluttaw, and that even if they are, they will be deemed to have resigned from the seat of the Hluttaw representative as of the date they are elected Union Ministers or the Attorney-General of the Union. Therefore, Union Ministers and the Union Attorney-General are the persons responsible to the President of the State.

The Union Government led by the President of the State has the right to allocate the executive authority as much as possible. However, the executive authority of the Union Government and the legislative authority of the Pyidaungsu Hluttaw will correlate with each other as has been suggested that a detailed basic principle should be laid down on the fact that the executive authority of the Union Government extends to matters with respect to which the Pyidaungsu Hluttaw can make laws.

According to the laws promulgated by the Pyidaungsu Hluttaw, the Union Government will be vested with the duties and functions. The Union Government is responsible to put into practice these duties and functions. The Union Government will have the right to submit Bills to the Pyidaungsu Hluttaw in the interest of the State. If these Bills have been approved and promulgated by the Pyidaungsu Hluttaw, the authorities concerned will practise the duties and functions embodied in these laws. The Union Government and the Pyidaungsu Hluttaw will exercise check and balance between them.

By exercising the legislative power, the Pyidaungsu Hluttaw shall have the right not only to enact laws considered necessary for the State but also to make necessary decisions in the interest of the State. When making administrative decisions, the Union Government is to take necessary steps, just as it is to submit its report on the measures taken to the Pyidaungsu Hluttaw.

Following are some resolutions passed by the Pyithu Hluttaw that came into existence in accordance with 1974 Constitution.

— At the fourth session of the first Pyithu Hluttaw held on 28-10-75, the Hluttaw decided to put on record the efforts made by the authoritative bodies concerned to systematically control the menace of psychotropic substances that can destroy the entire mankind, calling upon the entire people to participate in this drive with national outlook so as to make these campaigns effective and successful.

— At the third session of the second Pyithu Hluttaw held on 22-3-79, the Hluttaw decided that Myanmar should participate in Vienna Convention relevant to diplomatic relations and in its protocol relevant to citizenship.

— At the sixth session of the fourth Pyithu Hluttaw held on 15-3-88, the Hluttaw decided Myanmar should agree to the International Convention (1978) relevant to the provision of training to and the deliverance of skill certificate to seamen and the alternative discharge of duty.

According to the provisions of 1974 Constitution, the Council of Ministers had to implement the above-mentioned resolutions of the Pyithu Hluttaw. It is stated in Clause (c) of Article 87 that “The Council of Ministers implements the resolutions of the Pyithu Hluttaw.”

According to the Constitution, the Union Government therefore has the right to allocate its executive authority as much as possible. However, the onus is on the Union Government to implement the resolutions passed by the Pyidaungsu Hluttaw on an occasional basis in the interest of the country and the people.

The Union Government should submit to the Pyidaungsu Hluttaw progress reports on the implementation of the resolutions passed by the Pyidaungsu Hluttaw.

The Union Government is an organ responsible for the maintenance of stability, peace and the prevalence of law and order in the country as well as for all-round developments of such sectors as economy, social affairs, administration, transport and so on. This being the case, it should occasionally inform the Pyidaungsu Hluttaw of progress. Only then will the Union Government and the Pyidaungsu Hluttaw be in harmony in their exercise of executive powers and legislative powers.

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

The Union Government shall —

(a) implement administrative resolutions passed occasionally by the Pyidaungsu Hluttaw, and submit the measures it has taken to the Pyidaungsu Hluttaw.

(b) submit the report on the entire affairs of the State to the Pyidaungsu Hluttaw on an occasional basis.

I will now sort out the detailed basic principles that should be adopted in connection with the Union government that shall be included in the executive sector of the Constitution.

1. 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.

2. 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.

3. (a) All executive action taken by the Union Government shall be expressed as done in the name of the President.

(b) Orders and instruments made and executed in the name of the President shall be authen ticated 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.

(c) 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.

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

4. The Union Government uphold and maintain stability, peace, and the prevalence of law and order in the country.

5. The Union Government shall lay down its policies in accord with the stipulations 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.

6. Based on annual budgets of the Union, drawn after coordinating with the Financial Commission, the Union Government shall draft the bill on Union budget, and shall submit it to the Pyidaungsu Hluttaw in line with the stipulations contained in the Constitution for approval.

7. The Union Government shall have the right to use the funds within the allotment of the normal expenditure included in the latest-enacted Union budget law of the Pyidaungsu Hluttaw, if the Pyidaungsu Hluttaw cannot approve the Union Government-submitted bill before the end of fiscal year.

8. The Union Government shall submit the bill concerning the matters the Pyidaungsu Hluttaw can enact into law within the framework of the provisions of the Constitution, and shall submit it to the Pyidaungsu Hluttaw.

9. The ministries of the Union Government shall manage, guide and supervise their subordinate government departments and organizations to ensure that the said subordinate bodies are conducting their functions in accord with the stipulations of the Constitution and the existing laws.

10. The Union Government cooperates and coordinates with the region government, the state government, and the self-administered area leading body to enable them to effectively and successfully carry out their tasks.

11. The Union Government, save constitutional disputes and the disputes over the re-delineation of territorial boundary, shall —

12. The Union Government, in accordance with law, shall —

(a) constitute Union-related service organizations as necessary, and stipulate the duties and functions for such organizations; and

(b) appoint the required number of staff.

13. The Union Government shall —

(a) implement administrative resolutions passed occasionally by the Pyidaungsu Hluttaw, and submit the measures it has taken to the Pyidaungsu Hluttaw.

(b) submit the report on the entire affairs of the State to the Pyidaungsu Hluttaw on an occasional basis.

I would like to conclude by repeating whether or not detailed basic principles should be laid down as have just been clarified in connection with the executive authority of the Union Government. Clarification on the executive power of region or state government presented, on behalf of Chairman of the National Convention Convening Work Committee, by National Convention Convening Work Committee Members Chairman of Civil Service Selection and Training Board Dr Than Nyun and Supreme Court Judge U Tin Aye will be published in the newspapers to be issued on 11 March.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050309_3.htm