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 —

(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.

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.