Whether the basic principle “The functions and the records of Pyidaungsu
Hluttaw shall be published for public information. But the functions and
records restricted by a law or the decisions of the Pyidaungsu Hluttaw shall
not be published” should be adopted or not is to be discussed

YANGON, 14 Dec—The following is the presentation on clarifications of National Convention Convening Work Committee Chairman on adoption of detailed basic principles for legislation of Pyidaungsu Hluttaw to be included in judicial sector for formulating State Constitution by Secretary of the National Convention Convening Work Committee U Thaung Nyunt at the plenary session held yesterday at Nyaunghnapin Camp in Hmawby Township, Yangon Division.

Constitutions of the world nations stipulate the provisions saying that the public should be informed of the discussions at the legislative assembly. In the global countries, the decisions excluding the decisions assumed by the hluttaw to be harmful to the national security, and decisions restricted by any law or the hluttaw itself are not issued.

I suppose that in our country, except from discussions and records that may endanger the national security and the matters and records that are restricted by any law or according to the hluttaw decisions, all the remaining matters and decisions should be issued for the public.

Hence, delegates should discuss whether the basic principle “The functions and the records of Pyidaungsu Hluttaw shall be published for public information. But the functions and records restricted by a law or the decisions of the Pyidaungsu Hluttaw shall not be published” should be adopted.

I have already explained in detail the distribution of legislative power for the Pyidaungsu Hluttaw that includes the Pyithu Hluttaw and the Amyotha Hluttaw concerning the detailed basic principles for sharing of the legislative power. In countries which have the central level assembly and the state level chamber, their constitutions separately state the legislative list compiled by the central level assembly and the legislative list compiled by the state level chamber. Thus, their constitutions include the stipulation saying that the parliament shall have power to make laws for the whole or any part of the nation.

The 1947 Constitution had two legislative lists — Union legislative list stating the matters within the legislation of the parliament, and state legislative list stating matters included in the legislation of the State Councils. The sub section 1 of the section 92 of the 1947 Constitution stated, “The Parliament shall have power to make laws for the whole or any part of the Union except in so for as such power is assigned by the next succeeding sub-section exclusively to the State Council.”

The future constitution will have the legislative power to make laws for the whole nation. But sometimes it will make laws that concern only the particular part of the Union.
In my view, a detailed basic principle “The Pyidaungsu Hluttaw shall have the right to make laws for the whole or any part of the Union concerning the matters stated in the Union Legislative List” should be laid down.

The Pyithu Hluttaw and the Amyotha Hluttaw of the Pyidaungsu Hluttaw are two chambers with equal rights. They have the equal rights to approve a bill to be enacted as a law. If a bill concerning matters within the legislative power of the Pyidaungsu Hluttaw are approved by the Pyithu Hluttaw and the Amyotha Hluttaw, it should be presumed that the Pyidaungsu Hluttaw has approved the bill.

Thus, delegates should discuss whether the detailed basic principles

(a) The Pyidaungsu Hluttaw shall have the right to make laws for the whole or any part of the Union concerning the matters stated in the Union Legislative List.

(b) If a bill initiated in the Pyithu Hluttaw or the Amyotha Hluttaw is approved by both Pyithu Hluttaw and Amyotha Hluttaw, it shall be presumed that the bill is approved by the Pyidaungsu Hluttaw.

I will now explain the issuance of rules and regulations, notifications, directives and procedures in connection with an enacted law.

The section 90 of the 1947 Constitution stated, “Provided that an Act of the Parliament may authorize any person or authority therein specified to make rules and regulations consonant with the Act and having the force of law, subject, however, to such rules and regulations being laid before each Chamber of Parliament at its next ensuring session and subject to annulment by a motion carried in both Chambers within a period of three months of their being so laid, without prejudice, however, to the validity of any action previously taken under the rules or regulations.”

The future constitution will need a provision saying that the laws enacted by the Pyidaungsu Hluttaw should authorize any person or authority specified to make rules and regulations, notifications, directives and procedures.

Thus, in enacting a law, and the authority to issue rules, regulation, notifications, directives and procedures concerning the law should be vested in the Union level organizations formed according to the new constitution. The authority to issue rules, regulations, directives and procedures should be entrusted to the respective organizations and administrative bodies.

The rules, regulation, notifications, directives and procedures in connection with a law should be consonant with the law. Normally, the legislative bodies observe the rules, regulations, notifications, directives and procedures to ascertain that they are consonant with the original law and the stipulations contained in the constitution. If a Hluttaw member points out at the hluttaw that the rules, regulations, directives or procedures should be annulled as the rules, regulations, directives or procedures are not consonant with the original law or the stipulations contained in the constitution, or presents the matter to the respective body for amendment. Usually the task of cancelling and making amendments are carried out by the legislative bodies. But the legislative bodies before making the decision exercise in accord with the policy which says that the decision should be without prejudice, however, to the validity of any action previously taken under the rules, regulations, directives or procedures.

The right to annul and amend the rules, regulations, directives or procedures if they are not consonant with the stipulations contained in the Constitution and the original law should be vested in the Pyidaungsu Hluttaw. The authority to do so should be entrusted to the Pyithu Hluttaw and the Amyotha Hluttaw. If the two hluttaws decide to annul or amend any one the rules, regulation, directives and procedures, it should be regarded as the Pyidaungsu Hluttaw’s act. If there is disagreement between the two hluttaws concerning the matter they should present it to the Pyidaungsu Hluttaw for decision.

There should also be a stipulation to ensure that the decision should be without prejudice, however, to the validity of any action previously taken under the rules, regulations, directives or procedures.

Thus, concerning the above mentioned matter, delegates should discuss whether the following detailed basic principles should be adopted.

(a) When the Pyidaungsu Hluttaw enacts a law, it may —

(1) entrust the right to issue rules, regulation and bylaws concerning the law to the Union level organizations formed according to the Constitution.

(2) authorize the respective organizations or authority to issue notifications, orders, directives and procedures.

(b) The rules, regulations, notifications, orders, directives and procedures issued with the right vested by an Act shall be consonant with the stipulations contained in the Constitution and the law concerned.

(c) If both the Pyithu Hluttaw and the Amyotha Hluttaw decide to annul or amend any one the rules, regulations or bylaws, it shall be presumed that the rules, regulations or bylaws are annulled or amended by the Pyidaungsu Hluttaw.

(d) If there is any disagreement between the Pyithu Hluttaw and the Amyotha Hluttaw concerning the said rules, regulations or bylaws, it shall be decided by the Pyidaungsu Hluttaw.

(e) If a decision is made to annul or amend any of the rules, regulations or bylaws according to the para (c) or para (d), the decision shall be without prejudice, however, to the validity of any action previously taken under the rules, regulations or bylaws.

I will explain the responsibilities that the Pyidaungsu Hluttaw should have in the matters concerning the task of participating in the international and regional organizations, and reaching agreements between the nations as well as regional and international agreements. Because of the developments of science & technology in economic, social and security sectors, world nations are extending closer relations among themselves, and countries from different regions are cooperating in economic, social and security fields for ensuring equality in all spheres. World nations are also striving for the world to perpetuate as a peaceful place. International bodies and regional organizations are also taking part in the task.

In this regard, a member nation of the international and regional organizations needs to become a signatory in the international and regional agreements due to the extent of its functions. In this age that is witnessing the rapid progress reaching all corners of the earth, nations may reach political, financial, economic, social, defence and security treaties. There may also be cases in which a nation withdraw from an organization if staying within the body endangers its interest.

According to my studies, as the matters of becoming a signatory of international and regional treaties and bilateral agreements and withdrawing from and cancelling a treaty or an agreement may have effects on the interest of the whole nation the task in connection of the matters should be carried out with the approval of the respective hluttaws rather than the President alone.

The section 213 of the 1947 Constitution stated, “Every international agreement to which the Union becomes a party shall be laid before the Parliament. No international agreement requiring or likely to require legislation in order to give effect thereto shall be ratified except with the approval of the Parliament. No international agreement involving a charge upon the revenues of the Union shall be ratified unless the terms of the agreement shall have been approved by the Chamber of Deputies.”

Explanation also said, “This section shall not apply to inter-governmental agreements or conventions of a technical or administrative character.”

The section 214 of the constitution stated, “No international agreement as such shall be part of the municipal law of the Union, save as may be determined by the Parliament.” According to my study, in our country the decisions concerning the agreements covering matters that require the State financial expense, and important treaties such as political, economic and defence agreements should be made only by the Pyidaungsu Hluttaw. The Pyidaungsu Hluttaw should transfer the power to the President in reaching agreements including friendship and cultural exchange agreements for work facilitation.

Concerning the matter, I would like to suggest the delegates to discuss whether the following two detailed basic principles should be adopted.

“The Pyidaungsu Hluttaw —

(a) shall give the decision on matters in connection with ratifying, cancelling and withdrawing from international agreements, regional treaties or bilateral agreements submitted by the President.

(b) may fix the international, regional or bilateral agreements that do not need Pyidaungsu Hluttaw’s approval and delegate the President to ratify, cancel and withdraw from them.”

I am now going to present the matters that requires the Pyidaungsu Hluttaw’s decisions, agreement and approval. The already-laid-down detailed basic principles of the National Convention say that if the need arises to re-delineate the territorial boundary of the Union or the territorial boundary of a region or a state, first the approval of Pyidaungsu Hluttaw shall be sought.

The Convention has already laid down the detailed basic principles saying, The President after seeking the approval of the Pyidaungsu Hluttaw shall

— designate and make amendments and addition to Union ministries

— fix, increase and reduce the number of Union ministers,

— assign the Union ministers

— assign the Union attorney-general

— assign the Union auditor-general

— assign the Union chief justice

— assigned the Union Supreme court judges.

Detailed basic principles should be laid down in the coming chapters to be discussed. If the detailed basic principles include the prescription to seek Pyidaungsu Hluttaw’s decision, approval and confirmation, the decisions at the Pyidaungsu Hluttaw should be made according to the prescriptions.

The President may issue the ordinance having the force of law if necessary for emergency matters such as national security, apart from budget matters during the period the Pyidaungsu Hluttaw is not in session. When the ordinance is submitted to the Pyidaungsu Hluttaw, it will have to decide whether to approve it or not. If the Pyidaungsu Hluttaw approves the ordinance if should fix its expiary date.

The sub section 2 of the section 110 of the 1947 Constitution stated, “Every such Ordinance shall be laid before both Chambers of Parliament within forty-five days from the date of promulgation thereof, unless it shall have been withdrawn earlier by the President, and shall cease to operate at the expiration of fifteen days from the re-assembly of the Chamber of Deputies or the Chamber of Nationalities, whichever is later:

“Provided that the President may, with the consent of both Chambers of Parliament, extend the Ordinance for such further period may be deemed necessary.”

Article 74 of the 1974 Constitution also stated, “The Council of State may make if necessary ordinance having the force of law, such orders shall be submitted for approval to the nearest session of the Pyithu Hluttaw, held within 90 days. If no session of the Pyithu Hluttaw is due within 90 days, after the promulgation of such orders, an emergency session of the Pyithu Hluttaw shall be convened and approval obtained. Such orders shall cease to have effect from the date on which they are disapproved by the Pyithu Hluttaw.”

The constitution will stipulate the duration of time during which the ordinance issued by the President should be presented to the Pyidaungsu Hluttaw for approval. The ordinance should be presented to the nearest session of the Pyidaungsu Hluttaw during the time. If no session of the Pyidaungsu Hluttaw is due within the fixed time, after the promulgation of such orders, an emergency session of the Pyidaungsu Hluttaw should be convened and approval obtained according to the instruction of the President. If the Pyidaungsu Hluttaw approves the ordinance, the Pyidaungsu Hluttaw should also fix its expiary date.

Concerning the matter, the delegates should discuss whether the following detailed basic principle should be adopted:

(a) Matters that requires decision of the Pyidaungsu Hluttaw, agreement and approval should be implemented as follows:

(1) If the Pyidaungsu Hluttaw is in session, the matter shall be decided at that session.

(2) If the Pyidaungsu Hluttaw is not in session, the discussion and decisions on the matter shall be made at the nearest Pyidaungsu Hluttaw meeting.

(3) A special session or an emergency session shall be convened to discuss and decide the matters which need prompt action for public interest.

(b) When the President after issuing an ordinance having the force of law submits it to the Pyidaungsu Hluttaw for approval, the Pyidaungsu Hluttaw shall

(1) pass a resolution to approve it or not.

(2) fix the further period to which the ordinance shall continue to be in force if the Pyidaungsu Hluttaw approves the ordinance.

(3) The ordinance shall cease to have effect from the date on which it is disapproved by the Pyidaungsu Hluttaw.