According to already-laid-down basic principles, the President will have to
undertake duties of both the Head of State and the Head of Union Government

YANGON, 7 March — The following is the full clarification made by Chairman of the National Convention Convening Work Committee Chief Justice U Aung Toe on powers and functions of the President for laying down detailed basic principles for sharing of legislative and judicial power to be included in the State Constitution, at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, today.

The previous plenary sessions of the National Convention have laid down the basic principles and detailed basic principles “the Head of State is the President of the Union”, “the Executive Head of State is the President of the State” and “ the President shall exercise powers and functions vested in him by the Constitution and other laws”.

In accord with the basic principles and detailed basic principles, administrative duties and rights as the Head of State and the Executive Head of State should be entrusted to the President. In doing so, the division of the powers and functions to be vested in the President should be as follows:

— executive powers and functions he shall exercise on his own initiative

— executive powers and functions he shall exercise on his own initiative and shall seek the approval of the Pyidaungsu Hluttaw

— executive powers and functions he shall exercise only with the approval of the Pyidaungsu Hluttaw.

I would like to explain that the executive powers and functions the President shall exercise on his own initiative involve the matters to be performed in coordination with the Pyidaungsu Government, the respective institutions formed in accord with the Constitution, and the advisers in addition to those exercised on his own initiative.

The National Convention Convening Work Committee has studied the powers and functions invested in the President in accord with the constitutions of the respective world nations. In doing so, the Committee has found the following points:

— constitutions of some nations which entrust the duties of the Head of Government to the President in addition to the duties of the Head of State

— constitutions of some countries in which the President has to assume only the Head of State duties, and the Prime Minister has to undertake Head of Government duties.

The Work Committee also studied the powers and functions entrusted to the President in the 1947 Constitution of the Union of Myanmar and those vested in the Council of State in the 1974 Constitution of the Socialist Republic of the Union of Myanmar.

According to the already-laid-down basic principles, the President will have to undertake the duties of both the Head of State and the Head of Union Government. Thus, a wide range of necessary powers and functions should be entrusted to the President to enable him to carry out the executive duties speedily and effectively.

Based on the above-mentioned facts, the Work Committee has divided the duties of the President as “the executive powers and functions he shall exercise on his own initiative”, “the executive powers and functions he shall exercise on his own initiative and shall seek the approval of the Pyidaungsu Hluttaw”, and “the executive powers and functions he shall exercise only with the approval of the Pyidaungsu Hluttaw” to be included in the detailed basic principles for the Constitution. Now, I will continue to present the Work Committee’s study.

The executive power of the Union would be fully entrusted to the President as he will have to act as the Head of State as well as the Head of the Union Government of the Union of Myanmar according to the already-laid-down detailed basic principles. Only then will he be able to speedily and effectively implement all-round national development tasks in the interest of the State and the people.

But he should not have the absolute power in exercising the powers and functions, instead, he should take the responsibility for his actions. In electing the President, the presidential electoral college organized with three groups of Pyidaungsu Hluttaw representatives shall elect three vice-presidents. Of the three vice-presidents, the presidential electoral college shall elect by vote one of them as the President. In this regard, the term “The President shall be responsible to the Pyidaungsu Hluttaw” should be stipulated in the Constitution. As the Vice-Presidents are also elected by the representatives of the Pyidaungsu Huttaw, the term “The Vice-Presidents shall be responsible to the President and the Pyidaungsu Hluttaw through the President” should also be contained in the Constitution.

Concerning the matter, delegates will have to give suggestion on whether or not the detailed basic principle “The President shall be responsible to the Pyidaungsu Hluttaw. The Vice-Presidents shall be responsible to the President, and the Pyidaungsu Hluttaw through the President” should be laid down.

According to the basic principles and the detailed basic principles laid down by the National Convention, the Head of State is the President of the Union. The President represents the State, and is the Head of State and the leader of all citizens. As the President is the Head of State, he will have to make decisions on the nation’s affairs covering politics, administration, economy, etc. after viewing them from various angles.

In some nations, the national security councils led by the President have been formed under various names to advise and assist the President. In the Article 54 (b) of the 1974 Constitution of Myanmar, it was stated, “The Pyithu Hluttaw shall in accordance with law constitute a National Defence and Security Committee consisting of a suitable number of members of the Council of State and the Council of Ministers”.

The then Pyithu Hluttaw approved the formation of the nine-member National Defence and Security Committee with the Prime Minister as the Chairman on 5 March 1974.

According to the Constitution that will emerge in line with the basic principles and detailed basic principles that have already been laid down, the Pyidaungsu Government will be led by the President without the inclusion of the Prime Minister.

As the President is the Executive Head of the State, he will have to carry out the political, administrative, economic and security tasks of the State daily. Some security and defence issues of the State involve the cases that need immediate and prompt decisions in time. In such a circumstance, collective decisions after due consultations will be more comprehensive and appropriate than the individual decisions.

To be able to discharge the duties assigned in accord with the Constitution or any of the laws well, the President-led National Defence and Security Council should be formed with the following persons:

1. President
2. Vice-President
3. Vice-President
4. Speaker of the Pyithu Huttaw
5. Speaker of Amyotha Hluttaw
6. Commander-in-Chief of Defence Services
7. Deputy Commander-in-Chief of Defence Services
8. Minister for Defence
9. Minister for Foreign Affairs
10. Minister for Home Affairs
11. Minister for Border Affairs

Here, delegates will have to discuss and suggest whether or not a detailed basic principle should be laid down to form the President-led National Defence and Security Council comprising above-mentioned persons.

Now, I will discuss whether or not the duties and rights concerning the granting the right of amnesty to the President. In the world nations, the Head of State usually pardons or commutes the sentences of those serving prison terms in the country on significant days including the Independence Day, the National Day, the Armed Forces Day, etc. or during an appropriate time. Sometimes, the amnesty orders are issued on condition or without any conditions to enable the armed insurgents to lay down their guns and return to the legal fold.

When we study the post-independence history of Myanmar, we will find that the Head of State issuing various decrees including amnesty and commutation orders on significant days of the nation, on the days to mark the completion of a national task, in view of the stability of the State and community peace, or during the times issuance of such orders are deemed necessary.

When the Work Committee studies the constitutions of numerous nations where the President is the Head of State, it finds that the power is vested in the President to grant the right of amnesty or pardon on his own initiative.

Section 60 of the 1947 constitution of Myanmar states “The right of pardon shall be vested in the President.” But in the para (o) of Article 73 of the 1974 Constitution, it states that the right of pardon or amnesty was entrusted to the Council of State instead of the President.

In the section 401 of the existing criminal procedures code of Myanmar, it can be found that the President has been given the right of the suspension of the term of imprisonment on condition or without condition. The section also states that the President has the right to pardon the entire or part of the term of imprisonment. The President himself or the Ministry of Home Affairs and the Ministry of Justice exercising the President’s rights issued amnesty or pardons in line with the section 401.

The constitutions of world nations use various terms for the word “amnesty”. Generally, they use the words “amnesty” and “pardon”. The word “amnesty” carries a wider meaning than the word “pardon”.

Because its definition covers a wide array of sectors from the task of inviting armed insurgent organizations opposing the government to the legal fold, with promises to grant amnesty for them forgiving all the crimes they have committed, closing the cases under trial and granting amnesty for the defendants, declaring amnesty for service personnel facing departmental action for breaking of service rules to granting amnesty to persons who are serving imprisonment for various offenses.

The word “pardon” covers the words commutation, remission, suspension, reprieve and restoration of rights. In view of the above presentations, the Work Committee assumes that the right of pardon on own initiative should be vested in the President in the Constitution.

But the delegation of the right of granting Amnesty on own initiative to the President should be discussed in all seriousness, as the amnesty has much broader meaning than pardon. The issuance of amnesty will require the views from political and national solidarity angles. Moreover, the declaration of the amnesty for insurgent organizations and members, taking the armed struggle line against the nation, to come back to the legal fold, is required to assess and analyze the prevailing security, economic, social and other situations of the nation of that particular time.

In the Work Committee’s view, the right of granting amnesty in accord with the endorsement of the National Defence and Security Council, formed in line with the Constitution, should be vested in the President to make decisions concerning the amnesty and other related issues.

Here, delegates will have to discuss whether or not to lay down the following basic principles for the powers and functions of the President concerning the pardon and amnesty:

The President shall have
(a) the right of pardon
(b) the right of amnesty in accord with the endorsement of the National Defence and Security Council.

Now, the Work Committee will present its finds to discuss whether or not to delegate the powers and functions to institute, confer or revoke titles, honours and awards to the President.

In world nations, the Head of State usually presents titles, honours and awards to the persons who honour is due on the national significant days including the Independence Day, the National Day, the Armed Forces Day etc. To do so, orders are issued or laws are enacted to create the titles, honours and awards.

In Myanmar also, titles, honours and awards for independence struggle, efficiency, combat, economy, social affairs, administration, State service etc. have been designated, and the Head of State issues orders to confer titles, honours and awards on persons who honour is due on significant days such as the Independence Day and Armed Forces Day.

It is needed to prescribe the types of titles, honours and awards and the required qualifications for the candidates occasionally. The right of conferring titles, honours and awards is delegated to the President, who is the Head of State, in the constitutions of most of the nations. But generally, the right to create and prescribe titles, honours and awards is not vested in the President.

The stipulations contained in the 1947 Constitution did not include the institution of the titles, honours and awards. But the para (n) of Article 73 of the 1974 Constitution says “The Council of State shall institute, confer or revoke titles, honours and awards.” The constitutions of most of the nations state that the President shall confer the titles, honours and awards. But the constitutions of some nations state that the President shall confer titles, honours and awards in accord with the provisions stipulated in the law.

The right to confer or revoke titles, honours and awards on own initiative should be delegated to the President in accord with the law. A detailed basic principle has been laid down for delegation of the right to devise and institute titles, honours and awards and to prescribe required qualifications of candidates to the Pyidaungsu Hluttaw to discuss the matter in a wide array of sectors so as to enact laws as necessary within the framework of the Constitution. The Work Committee observes that it is more appropriate to invest the right to confer or revoke titles, honours and awards, within the framework of the laws enacted by the Pyidaungsu Hluttaw, in the President.

Hence, concerning the powers and functions of the President to confer or revoke titles, honours and award, the delegates will have to discuss whether or not the following detailed basic principles should be laid down:

“The President shall
(a) confer titles, honours and awards
(b) revoke titles, honours and awards in accord with the law.”

The Work Committee will now present its finds to discuss whether or not the powers and functions on establishment and severance of diplomatic relations with foreign nations should be vested in the President.

Since regaining of independence in 1948, the Union of Myanmar has been extending relations with sovereign nations, especially the neighbouring countries, the UN agencies and international organizations. In doing so, she has to set up proper diplomatic channels, and in some cases, sever diplomatic relations for certain reasons.

In the constitutions of most of the nations, the authority to establish diplomatic channels and cutting off diplomatic relations is not vested in the President. Only the duties covering the appointment or recall of ambassadors, ministers or consuls, and agreeing on the appointment of foreign diplomats and acceptance of their credentials, are entrusted to the President.

The Work Committee has found that the 1947 Constitution had no separate stipulations concerning the delegation of the duties and rights in connection with the establishment or severance of diplomatic relations to the President. Only in the sub para (1) of the para (2) did the Constitution stipulate the term “diplomatic, consular, and trade representation” in the Union Legislative List.

The sub para (f) of Article 73 of the 1974 Constitution states, “The Council of State shall make decisions concerning the establishment of diplomatic relations with foreign countries, severance of such relations and appointment and recall of diplomatic representatives.” The responsibility concerning the matter had been delegated to the chairman of the Council of State acting as the President in accord with the decision of the Council of State itself.

The task concerning the establishment or severance of diplomatic relations with foreign nations or international organizations is a delicate matter giving priority to extending friendly relations and maintaining the cordial ties between nations, in addition to its foundation that is whether or not to recognize a nation. Hence, the Work Committee has found that the task should be carried out only with the approval of the Pyidaungsu Hluttaw, instead of entrusting the right to make decision to the President alone. Only then will there be check and balance between the President and the Pyidaungsu Hluttaw and such a practice will lead to serving the Union’s interest better. But concerning a case which needs immediate and prompt action, the President should coordinate with the National Defence and Security Council to address it, and should seek the approval of the Pyidaungsu Hluttaw.

Hence, the powers and functions of the President concerning the establishment or severance of diplomatic relations, the delegates are urged to discuss and suggest whether or not to lay down the detailed basic principle — The President shall establish or sever diplomatic relations with foreign nations with the approval of the Pyidaungsu Hluttaw. But in the cases which need immediate and prompt action, the President shall coordinate with the National Defence and Security Council and sever diplomatic relations with a foreign nation, and he shall seek the approval of the Pyidaungsu Hluttaw concerning the matter.