PROCEEDINGS OF THE NATIONAL CONVENTION

10 March 2005

From “The New Light of Myanmar” 11 March 2005

The region or state government shall have the responsibility to assist the Union Government in its drive to ensure stability of the State, community peace and tranquillity and the rule of law

YANGON, 10 March — The following is the clarification made by Member of the National Convention Convening Work Committee Chairman of the Civil Service Selection and Training Board Dr Than Nyun, on behalf of the Chairman of the National Convention Convening Work Committee, on executive power of region or state governments for laying down detailed basic principles for the sharing of legislative and judicial powers to be included in the State Constitution, at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, on 7 March.

The previous plenary sessions of the National Convention have laid down the detailed basic principles concerning “Formation of Executive” and in the detailed basic principles state the formation of the Union government, and the formation of the region or state governments. Concerning the distribution of the executive power, a detailed basic principle — the executive power of the State is distributed among the Union, regions and states — has already been laid down. I have already explained the study of the Work Committee in connection with the matter for the delegates to hold discussions and make suggestions to lay down detailed basic principles regarding the executive power and functions of the Union Government in accord with the said already-laid-down detailed basic principle.

Now, I will continue to present the study of the Work Committee on the distribution of the executive power to the region or state governments.

Concerning the formation of the region or state governments, the following detailed basic principles have already laid down:

“Region government is formed in every Region, and State government is formed in every State.” and Region or state government is formed with the following persons:

(a) Chief Minister of region or state

(b) Ministers of region or state

(c) Advocate-General of region or state.”

As powers and functions have been vested in the Union Government, so also the authority and rights should be delegated to the region or state governments. The Union Government has the right to exercise in the entire Union the executive powers and functions vested in it. Thus, the region and state governments should be delegated with the authority and duty to exercise within their territory.
In the already-laid-down detailed basic principles, concerning the executive power, the Union legislative list and the region or state legislative list will be designated separately.

The Union executive list will include the executive matters the Union Government has to implement, and the region or state executive list will contain executive matters the region or state has to undertake.

In carrying out its task, the region or state government will form separate region or state ministries as necessary and will assign duties for the task to have effect. In the process, the region or state hluttaw will enact necessary laws included in the region or state legislative list for effective running of the administrative machinery.

To serve the interest of the nation and the people, the region or state governments may have the right to write bills on the matters on the region or state legislative list and to submit the bills to the respective region or state hluttaws. The region or state hluttaw concerned will have to enact laws in accord with the provisions of the Constitution.

In sub-section (1) of Section 162 under the Heading “Government of the Shan State”, sub-section (1) of Section 175 under the Heading “Government of the Kachin State” and sub-section (1) of Section 191 under the Heading “Government of the Kayinni (Kayah) State” of the 1947 Constitution it is stated that ‘subject to the provisions of this Constitution, the executive power of the State extends to the matters with respect to which the State Council has power to make laws’.

Here, the delegates will have to present discussions and suggestions on whether or not the following detailed basic principles should be laid down concerning the executive power of the regions and states:

Subject to the provisions of this Constitution, the executive power of the region or state government extends to the matters with respect to which the region or state hluttaw has power to make laws. Moreover, in such manner, the executive power of the region or state government also extends to the matters with respect to which the region or state government has been allowed to carry out in accord with any of the Union laws.

I will now explain the study of the matter in connection with the responsibility of the region or state government to help the Union Government as necessary in ensuring stability of the State, community peace and tranquillity and the rule of law.

I have already presented in the sector of powers and functions of the Union Government, that the Union Government has the responsibility to ensure stability of the State, community peace and tranquillity and the rule of law for successfully implementing the all-round development undertakings covering the administration, economy, social sector, transport, etc.

As the responsibility rests on the Union Government, it can ensure stability of the State, community peace and tranquillity and the rule of law, only if there prevails stability of regions and states, community peace and tranquillity and the rule of law.

Likewise, the region or state government may successfully implement the all-round development tasks covering the administration, economy, social sector, transport, etc. in their own territories, only if there is stability of regions and states, community peace and tranquillity and the rule of law.

In this regard, the region or state government will have to always strive for proper running of the administrative machinery and for launching the all-round development tasks with added momentum in their respective territories, for maintaining the already-forged national solidarity, and for assisting the Union Government in its drive for ensuring stability of the State, community peace and tranquillity and the rule of law.

A basic principle “Public peace and tranquillity and prevalence of law and order is the responsibility of every citizen” concerning the fundamental rights and responsibilities of citizens has already been adopted. Hence, the region or state government has the responsibility to assist the Union Government in its drive to ensure stability of the State, community peace and tranquillity and the rule of law, in addition to the duty to organize the citizens to take part in the drive with duty consciousness.

Hence, the delegates are to discuss and suggest whether or not the following detailed basic principle should be laid down:

The region or state government shall have the responsibility to assist the Union Government in its drive to ensure stability of the State, community peace and tranquillity and the rule of law.

I will now continue to present the study on the laying down of work programmes of the region and state governments and implementation of the said work programmes.

The region or state government is to lay down work programmes on how it is going to develop its own territory and the priority tasks. The work programmes should include long-term, short-term and annual plans of the region or state government.

The region or state government will have to lay down work programmes on economy, social sector, administration, etc. appropriate to its territory's natural conditions. This should be in line with the objectives, basic principles and guidelines of the Constitution. They should not be contrary to the policies adopted by the Union Government and Union laws.

The region or state government will have to implement the long-term, short-term and annual plans, after the approval of the region or state hluttaw.

The delegates will have to discuss and suggest whether or not to lay down the following detailed basic principle in connection with the matter to lay down work programmes of projects of the region or state government.

Subject to the policies adopted by the Union Government and Union laws, the region or state government shall implement the projects in connection with the task to be implemented in the region or state concerned with the approval of the region or state hluttaw.

I will now present the study on the drawing of the annual budget of the region or state and drafting of a bill on budget that should be designated as a task of the region and state governments.

Concerning the compilation of the budget statements for the states and submitting them to State Council, sub section (1) of section 164, sub-section(1) of section 177 and sub-section(c) (amendment) of section 181, and sub-section(1) of the section 193 of the 1947 Constitution state, “The Head of the State shall prepare or cause to be prepared the estimates of the receipts and of the expenditure of the State for each financial year and shall present them or cause them to be presented for the State Council for consideration.”

The region or state government is the institutions undertaking the responsibilities of the security, administrative, economic, social, transport and other sectors of the areas concerned. Thus they will have to draw the annual budget of the region or state concerned. To do so, the region or state government will have to estimate the receipt region or state, the possible expenditures of the organs of power and staff of the regions or states, and the expenditures of the on-going projects, and short-term, long-term and annual plans. In making the calculations, the amounts of the needed financial provisions of the Union Government, the desired loans and financial aids should be taken into account.

The region or state government is to draw the budgets in accord with the provisions of the constitution, the respective laws, bylaws, rules and regulations, orders and directives. In the process, the region or state government will have to separate the matter into two headings — the normal income and capital income under the heading “income” and normal expenditure and capital expenditure under the heading “expenditure”. The region and state governments are to earmark the estimated amounts of financial assistance and loans if there is any deficit. In doing so, the region or state governments of the regions and states which have the self-administered division or self-administered zones are to include the estimated amounts of additional funds, loans and financial aids for the long-term, short-term and annual plans approved according to the coordination and submission of the self-administered division leading body and the self-administered zone leading bodies in drawing annual budgets.

The Union Government and the region or state governments are to coordinate at the Financial Commission, formed according to the Constitution, and will have to revise their respective accounts again. The President and the chief ministers of the 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 Government and the region and state governments are to be approved in accord with the coordination. At the discussions of the Financial Commission the region and state governments may know in advance the amounts of additional funds, financial aids for special cases, and loans they are going to receive from the Union Government during the fiscal year.

The National Convention has already laid down the detailed basic principle in connection with the formation of the Financial Commission and it responsibilities and rights. According to the already-laid-down detailed basic principles, the Financial Commission in the process of supporting the bill on the Union budget inclusive of the receipts and expenditure account of the Union, the provision of appropriate additional funds to the regions and states from the Union Budget Fund, special financial aids, and disbursement of loans and presenting it to the President for submitting it to the Pyidaungsu Hluttaw, the President or the person assigned by the President, on behalf of the Union Government, will have to submit the bill on the Union budget to the Pyidaungsu Hluttaw.

The Union Government will have to act according to the Union budget law enacted by the Pyidaungsu Hluttaw.

Based on the annual budget of the Union, the region and state governments will have to draw the annual budgets of the respective regions and states. After writing the accounts, the region or state governments are to draw the bill on its budget and submit it to the region or state hluttaw concerned together with the explanation, for approval. The region or state governments of the regions and states having the self-administered division or self-administered zone or zones are to inform the leading bodies of the self-administered division or self-administered zone about the permitted financial amount included in the approved budget.

The region and state governments may use the funds of the bill of budget already approved by the respective hluttaws only after the chief ministers of the respective regions or states have signed and enacted into law in accord with the stipulations contained in the Constitution.

Hence, the delegates will have to discuss and suggest whether or not the following basic principle concerning the drawing of the annual budget of the region or state governments and enactment of the budget law as a detailed basic principle should be laid down:
“Region or state governments shall submit to the respective hluttaws of the regions and states the matter concerning the promulgation the bill on the budget of the regions and states concerned based on budget of the Union Government in accord with the provisions of the Constitution.”

I will now present the Work Committee’s study on what it is to be done by the region or state governments if the hluttaws of the respective regions and states cannot approve the bill on annual budget of the region or state governments before the end of fiscal year.

The region or state governments will have to submit the bill on the budget of the respective states or divisions to the hluttaws concerned of the regions and states in line with the provisions of the Constitution for approval before the end of fiscal year. The region or state governments are to constantly run the administrative machinery of their respective territories. Only then will they be able to implement all the on-going tasks including the administration, economy, social affairs, security, etc. without any interruptions.

In materializing the national objective — flourishing of genuine multi-party democracy — discussions on the bill on the budget of the region or state should be made at the region or state hluttaw concerned. But there may arise the failure to enact budget law of the respective regions or states in time because the task cannot be completed before the end of fiscal year.

In such a situation, the region or state governments should have the right to continue to use the funds in line with the provisions of the Constitution for the government machinery to run as usual. Moreover, salaries and other expenditures of heads and members of region or state level organizations, salaries and other expenditures of heads and members of self-administered area leading bodies, salaries and other expenditures of staff organizations, and current expenditures, should be used from the funds of region or state budget within the limits stipulated in the Constitution. The use of the funds should be according to the procedures within the limit of the current expenditures inclusive in the last-enacted budget law of the region or state. Only then, will the region and state governments be able to run the administrative machinery as usual.

After the region or state hluttaw has enacted the budget law of the region or state concerned, the funds used from the current expenditure in advance may be adjusted as necessary.

The delegates will have to discuss and suggest whether or not the following detailed basic principle in a situation in which the region or state hluttaw cannot enact the budget law of the region or state concerned before the end of fiscal year should be laid down:

“If the region or state hluttaw cannot pass the bill on the budget of the region or state submitted by the region or state government concerned, the said region or state government shall have the right to use the funds of the current expenditure included in the last-enacted budget law of the region or state hluttaw.”

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050310_1.htm

In accordance with the provisions of the Constitution, the region or state government shall have the right
to submit to the Region or State Hluttaw the necessary Bill relevant to the matters embodied in the Region or State Legislative List

YANGON, 10 March — The following is the clarification made by Member of the National Convention Convening Work Committee Supreme Court Judge U Tin Aye, on behalf of the Chairman of the National Convention Convening Work Committee, on executive power of region or state governments for laying down detailed basic principles for the sharing of legislative and judicial powers to be included in the State Constitution, at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, on 7 March.

I will continue to present what the Work Committee has observed in connection with the submission of Bills by the region or state government to the Region or State Hluttaw.

I have presented a detailed basic principle to be laid down that the executive authority of the region or state government, if it is subject to the provisions of the Constitution, extends to the matters with respect to which the Region or State Hluttaw has power to make laws.

The Constitution will include two separate legislative lists: one to be promulgated by the Pyidaungsu Hluttaw and the other by the Region or State Hluttaw.

The region or state government therefore is required to draft a Bill first when the need arises to enact law concerning the matters embodied in the Region or State Legislative List. After drafting the Bill, it should be submitted to the Region or State Hluttaw with good cause and reason in accordance with the provisions of the Constitution. Only when the Region or State Hluttaw has put it under discussion and approved it can the Bill be promulgated as law.

The sectors categorized in the Region or State Legislative List are finance and planning; economy; agriculture and livestock breeding; energy, electricity, mining and forestry; industry; transport, communication and construction; social affairs; and management. Each sector contains salient points, in which the types of tax revenues that can be collected are expressed. The region or state government therefore has the right to submit to the Region or State Hluttaw concerned in accordance with the provisions of the Constitution the Bills relevant to the types of tax revenues mentioned in each sector. In this context, members of the region or state government are responsible to explain, on behalf of their respective governments, their Bills to the Region or State Hluttaw concerned.

According to the Constitution, the region or state government, on an occasional basis, will have the duty to write necessary laws related to the matters embodied in the Region or State Legislative List and to submit them. Moreover, the region or state government will also have the duty to write and submit as necessary the Amendment Bills and the Bills for the Annulment of Laws after scrutinizing the laws which are no longer in consistence with the changing condition and those which are no longer in need out of the laws enacted by the Region or State Hluttaw. According to the provisions of the Constitution, the region or state government is to undertake its duty to write and submit Bills for the matters with respect to which law should be made.

In connection with the writing and submission of Bills by the region or state government, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:

“In accordance with the provisions of the Constitution, the region or state government shall have the right to submit to the Region or State Hluttaw the necessary Bill relevant to the matters embodied in the Region or State Legislative List.”

To be in accordance with law when the region or state ministries and their subordinates discharge their respective duties, the region or state government should be vested with the powers and functions to manage, guide, supervise and inspect them. I will present what the Work Committee has found in connection with this matter.

The powers and functions of the region or state government originate from the provisions of the Constitution. According to laws to be promulgated in accordance with the Constitution, according to laws to be promulgated in accordance with the matters embodied in the Union Legislative List, or according to laws to be promulgated in accordance with the matters embodied in the Region or State Legislative List, there will emerge tasks to be undertaken by the region or state government, or tasks to be undertaken by the region or state ministry. Moreover, the region or state government concerned and ministries concerned are to take charge of their respective duties.

Constant supervision should be given to ministries, governmental departments and organizations, whose functions are subject to the provisions of the Constitution. Moreover, they are responsible to supervise to ensure that these orders and functions are in accordance with the provisions of the region or state laws. Directive should be provided if need be. It is therefore necessary for the region or state government to submit regular or special reports on the functions of their subordinate bodies.

The region or state government is to run a check on whether its subordinates conduct their functions in accordance with the Constitution, or existing laws, or rules and regulations, procedures, orders and directives born out of these laws. In case of failure to follow any of them, necessary management or directives should be provided. Only then will the functions of the subordinate government organizations of the region or state ministries be in harmony with the powers entrusted. Only then will they serve the interests of the country and the people.

The region or state government is required to make the tasks for supervision, inspection, cooperation and coordination as necessary to ensure that civilian service personnel of the Union government, civilian service personnel of the region or state government; and civilian service personnel of the self-administered division or zone leading bodies participate in undertaking the duties assigned. Only then will the region or state government be able to effectively carry out the tasks in the interest of the Union.

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

“The region or state government shall —

(a) manage, guide, supervise and inspect the performance of the region or state ministries and their subordinate government departments and organizations to ensure that they conduct their functions in accordance with the provisions of the Constitution, or with those of the existing laws.

(b) supervise, inspect, cooperate and coordinate in accordance with law the performance of the civil service organizations discharging duties in their respective regions or states.”

I will continue to present what the Work Committee has found in connection with the powers and functions to be vested in the region or state government to form civilian services, to designate their lines of duty, and to employ the required number of staff.

The detailed basic principle that has been suggested to lay down in connection with the executive power of the region or state government is that “The executive power of the region or state government, if it is subject to the provisions of the Constitution, extends to matters with respect to which the Region or State Hluttaw can make laws as well as to matters with respect to which the region or state government can implement according to any Union Law”.

The region or state government is responsible to practise the powers 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 any of the Union Law, or according to the laws enacted by the Region or State Hluttaw in connection with the matters embodied in the Region or State Legislative List.

The region or state government is therefore to allocate the powers and functions vested in it according to law to the region or state ministries to enable them to act on its behalf. As is known to all, the President of the State can designate the region or state ministries as necessary with the approval of the Region or State Hluttaw, and can make changes in and addition to the designated ministries as necessary.

The region or state government ministries should have the right to form necessary civilian service organizations and make such organizations act on their behalf with the use of the powers and functions allocated to them according to law.

The region or state government should have the power to appoint the required number of staff at the civil service organizations of the region or state so that respective ministries can undertake the tasks under its charge. Staff should be appointed only after coordination with the Union government to ensure that the members of staff at different levels secure deserving rights the same as the staff of the Union, that the appointment of staff does not become a burden for the region or state government concerned, and that it is in accordance with the Union Law for State Civil Service.

In connection with the setup of civil service organizations and the appointment of civil service staff by the region or state government, it is therefore necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:

“To implement the tasks under its charge in accordance with the Union Law for State Civil Service, or through coordination in advance with the Union government, the region or state government shall —

(a) establish civil service organizations of the region or state as necessary;

(b) appoint the required number of civilian staff.”

I will now present what the Work Committee has found in connection with the functions of the region or state government to implement the resolutions passed by the Region or State Hluttaw, and the functions of the region or state government to submit to the Region or State Hluttaw the entire affairs of their regions or states.

I have suggested a detailed basic principle that the executive authority of the region or state government extends to the matters with respect to which the Region or State Hluttaw can make laws. The executive authority of the region or state government therefore correlates with the legislative authority of the Region or State Hluttaw.

According to the laws enacted by the Region or State Hluttaw, the region or state government will have the powers and functions to practise. The region or state government should submit to the Region or State Hluttaw concerned the reports on the measures taken in accordance with law in the interest of the State as well as the region or state of their own. Only then will the region or state government and the Region or State Hluttaw, in exercise of their respective powers, become interdependent with mutual respect.

By exercising the legislative power embodied in the Constitution, the Region or State Hluttaw should have not only the right to promulgate necessary laws for the region or the state but also the right to make decisions in the interest of the region or the state. When the Region or State Hluttaw makes administrative decisions, the region or state government concerned is responsible to take necessary measures to implement them.

In this context, the region or state government is required to submit to the Hluttaw concerned as well as to the Union government the report on progress of measures taken for the implementation of the resolutions passed by the Region or State Hluttaw. Only then will the Union government be able to keep in touch with the entire conditions of regions and states across the Union.

As an organ responsible for all-round development tasks in its own area, the region or state government should be tasked to submit progress reports to the Region or State Hluttaw concerned on a regular basis. Only then will the region or state government and the Region or State Hluttaw concerned, in exercise of their respective powers, executive and legislative, become interdependent with mutual respect.

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

The region or state government shall —

(a) implement the resolutions occasionally passed by the Region or State Hluttaw concerned, and submit the report on the measures taken to the Region or State Hluttaw concerned.

(b) submit the report on the entire affairs of their areas to the Union government and to the Region or State Hluttaw concerned.

Only when the Union government and the region or state government implement the administrative tasks against time will the State and the people benefit from it. The Union government will promulgate policies and directives relevant to time and condition in the interest of the State and the people. The region or state government is responsible to implement such policies and directives by putting into practice the powers vested in them. It is therefore assumed that the region or state government should be tasked to implement what the Union government assigns on an occasional basis.

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

The region or state government shall implement the tasks occasionally assigned by the Union government.

I will now sort out the detailed basic principles that should be adopted in connection with the executive authority vested in the region or state government and the powers and functions relevant to that authority.

1. Subject to the provisions of this Constitution, the executive power of the region or state government extends to the matters with respect to which the region or state hluttaw has power to make laws. Moreover, in such manner, the executive power of the region or state government also extends to the matters with respect to which the region or state government has been allowed to carry out in accord with any of the Union laws.

2. The region and state governments shall have the responsibility to assist the Union Government in its drive to ensure the stability of the State, community peace and tranquillity and the rule of law.

3. Subject to the policies adopted by the Union Government and Union laws, the region or state governments shall implement the projects in connection with the task to be implemented in the respective regions or states with the approval of the region or state hluttaws.

4. Region or state governments shall submit to the respective hluttaws of the regions and states the budget bill of the regions and states concerned based on the annual budget of the Union Government in accord with the provisions in the Constitution.

5. If the region or state hluttaw cannot pass the bill on the budget of the region or state submitted by the region or state government concerned, the said region or state government shall have the right to use the funds of the current expenditure included in the last-enacted budget law of the region or state hluttaw.

6. In accordance with the provisions of the Constitution, the region or state government shall have the right to submit to the Region or State Hluttaw the necessary Bill relevant to the matters embodied in the Region or State Legislative List.

7. The region or state government shall —

(a) manage, guide, supervise and inspect the performance of the region or state ministries and their subordinate government departments and organizations to ensure that they conduct their functions in accordance with the provisions of the Constitution, or with those of the existing laws.

(b) supervise, inspect, cooperate and coordinate in accordance with law the performance of the civil service organizations discharging duties in their respective regions or states.

8. To implement the tasks under its charge in accordance with the Union Law for State Civil Service, or through coordination in advance with the Union government, the region or state government shall —

(a) establish civil service organizations of the region or state as necessary;

(b) appoint the required number of civilian staff.

9. The region or state government shall —

(a) implement the resolutions occasionally passed by the Region or State Hluttaw concerned, and submit the report on the measures taken to the Region or State Hluttaw concerned.

(b) submit the report on the entire affairs of its area to the Union government and to the Region or State Hluttaw concerned.

10. The region or state government shall implement the tasks occasionally assigned by the Union government.

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 region or state government and the powers and functions relevant to that authority.

Clarification on executive power of leading body of division or zone presented by National Convention Convening Work Committee Chairman U Aung Toe and on State Service Personnel presented, on behalf of Chairman of the National Convention Convening Work Committee, by Vice-Chairman of the Work Committee Attorney-General U Aye Maung will be published in the newspapers to be issued on 12 March.

Source: http://mission.itu.ch/MISSIONS/Myanmar/n-convention/nc050310_2.htm