Detailed basic principles that should be adopted for Chapter “Transitory Provisions” clarified

YANGON, 4 Aug — The following is the clarification of the National Convention Convening Work Committee on the detailed basic principles that should be adopted in the chapter “Transitory Provisions” to be included in drawing the State constitution at Nyaunghnapin Camp in Hmawby Township on 2-8- 2007.

Mr Chairman,

At the plenary session of the National Convention held on 13 November 2006, the Chairman of the National Convention Convening Work Committee explained the detailed basic principles that should be adopted in connection with the chapter — Transitory Provisions.

The Delegate Groups — the Delegate Group of National Races, the Delegate Group of Peasants, the Delegate Group of Workers, the Delegate Group of Intellectuals and Intelligentsia, the Delegate Group of State Service Personnel, the Delegate Group of Other Invited Persons, the Delegate Group of Political Parties— the National Unity Party, the Union Pa-O National Organization, the Shan State Kokang Democratic Party, the Mro or Khami National Solidarity Organization, the Lahu National Development Party, the Union Kayin League, the Kokang Democracy and Unity Party and the Wa National Development Party— and the Delegate Group of Representatives-Elect—the representatives-elect of the political parties and the three-member group including independent representatives- elect Dr Hmu Htan and the six-member group including independent representatives-elect U Tin Win held discussions and made suggestions on the Work Committee Chairman’s clarifications and laid down the following detailed basic principles:

1. “This Constitution shall come into force throughout the Union after its adoption in a nationwide referendum by more than half of all the people who have the right to vote.”

2. “The State Peace and Development Council shall, continuing to exercise State sovereignty, carry out during the interval between the coming into force of this Constitution and the day the first session of the Pyidaungsu Hluttaw is convened, all the functions of the Pyidaungsu Hluttaw under the Constitution.”

3. “The work done by the State Peace and Development Council to bring the Constitution into force shall be deemed to have been carried out in accord with this Constitution.”

4. “All policy guidelines, laws, rules, regulations, notifications, proclamations, measures, responsibilities and rights of the State Peace and Development Council shall devolve on the Union of Myanmar”

5. “Existing laws shall remain in force in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Pyidaungsu Hluttaw.”

6. “Existing rules, regulations, bye-laws, notifications, orders, directives and procedures shall remain in force in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Union Government.”

7. “All courts existing on the date of the coming into operation of this Constitution shall continue to exercise their jurisdiction until new courts are established by law in accord with this Constitution. All cases, civil, criminal and revenue, pending in the said courts, shall be disposed of in accord with the laws exercised on the date on which the cases came up for trial.”

8. “All functioning State service personnel of departmental organizations including Tatmadaw under the State Peace and Development Council on the day this Constitution comes into force shall continue in their functions unless otherwise prescribed by the Government of the Union of Myanmar.”

Mr Chairman,

Independent representatives-elect Dr Hmu Htan of Thantlang Township Constituency in Chin State, U Aung Thein of Ywangan Township Constituency in Shan State (South) and U Tun Kyaw of Namhsan Township Constituency in Shan State (North) gave a suggestion, saying, “In order to complete the drawing of the State Constitution, the National Convention has adopted the fundamental principles and detailed basic principles that reflect the policies and stances, which are necessary foundations for building a new nation. We have to draft the State Constitution with these fundamental principles and detailed basic principles. The aspiration of the people will come true if the fourth step of the Road Map—Adoption of the Constitution through a national referendum— is realized within one year after the completion of the National Convention. Personally, I suggest that the officials take necessary measures to hold a referendum within one year after the completion of the National Convention.

“I would also like to make a suggestion about the fifth step of the Road Map —The holding of free and fair elections for Hluttaws (Legislative bodies) according to the new Constitution. Section 233 of the 1947 constitution says “The first general elections under this Constitution shall be held within eighteen months from the date of the coming into operation of this Constitution”.

“Regarding the 1974 Constitution, the 1974 Constitution was declared on 3 January 1974, the first elections were held under the 1974 Constitution from 27 January to 10 February 1974. In addition, the first session of the Pyithu Hluttaw was held in Yangon at 11 am on 2 March 1974.

“So, I would like to make a suggestion that officials concerned should make preparations for implementation of the fifth step in a suitable occasion through a referendum for speedy building of a modern and developed nation.”

Concerning the first suggestion, I would like to say that as the task is being implemented in accord with the seven-point Road Map, it is not possible to exactly fix the date and time.

Regarding the second suggestion, the task of“holding a free and fair election”, which is the fifth step of the already-laid down State’s Road Map, is to be carried out by the Election Commission in accordance with the State Constitutio, Election Law and regulations.

Therefore, I would say the suggestion will be recorded so that necessary measures in this regard can be taken in a suitable length of time.

Independent representatives-elect U Tin Win of Kyaiklat Township Constituency-2, U Thein Kyi of Taungdwingyi Township Constituency-1, U Hla Soe of Minbu Township Constituency-2, U Mya Hlaing of Twantay Township Constituency-2, U Kyi Win of Mingaladon Township Constituency-1 and U Tin Tun Maung of Mingaladon Township Constituency-2 gave suggestions on paras (2) and (5) from of all the points
explained by the Work Committee Chairman.

Paragraph No 2 says “The State Peace and Development Council shall, continuing to exercise State sovereignty, carry out during the interval between the coming into force of this Constitution and the day the first session of the Pyidaungsu Hluttaw is convened, all the functions of the Pyidaungsu Hluttaw under the Constitution.” This point states that the SPDC will have to exercise the sovereign power just till the first session of the Pyidaungsu Hluttaw is held. In such time, I do not think it is convenient to hand over the sovereign power to the Pyidaungsu Hluttaw. The Pyidaungsu Hluttaw will have to elect and access the President, who is the executive head. Then, the State President will have to form this governing body and appoint the Chief Justice. Only such a time will it be convenient for the bodies that have to take over the State’s sovereign powers ready to assume discharge of their duties. So, the para (2) should be:

“The State Peace and Development Council shall, continuing to exercise State sovereignty, carry out till the bodies, which are formed and assigned duties under this Constitution beginning from the date on which this State Constitution comes into force, assume discharge their duties.” And para (5) says “Existing laws shall remain in force in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Pyidaungsu Hluttaw.” From the time the State Constitution comes into force to the time of the emergence of the Constitutional Tribunal, there will not be yet an organization that has power to decide whether a law is contrary to the State constitution. So, in the para, the expressions “Existing laws shall remain in force in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Pyidaungsu Hluttaw” should be “Existing laws shall remain in force until and unless they are repealed or amended by the Pyidaungsu Hluttaw”. The Work Committee’s assumption is that if the point of the suggestion concerning the amendment of the para 2 is added to the said detailed basic principle, the transfer of the three organs of State power by the State Peace and Development Council to the governmental bodies will be more convenient without any loopholes. However, there will be the Pyidaungsu Hluttaw carrying out the task in connection with the legislation and the para 7 states that all courts existing on the date of the coming into operation of this Constitution shall continue to exercise their jurisdiction until new courts are established by law in accord with this Constitution.

Hence, the suggestion concerns only the administrative affairs. The institution that is mainly responsible for the administrative affairs is the government. To be more inclusive, the para 2 should be changed as the para 2 (a) and the following para 2 (b) should be added:“The Government that exists on the date this Constitution comes into force shall continue to discharge the respective duties until the emergence of the new Government formed and assigned duties in accord with this Constitution.”

As the abovementioned point is in accord with the adopted fundamental principles, it should be considered seriously. The National Convention Convening Work Committee discussed the matter with the members of the panel of chairmen concerned. The Delegate Groups sent their opinions regarding the suggestion to the Work Committee in writing after the panels of chairmen had held discussions with the respective delegates. All the Delegate Groups suggested stating the para 2 (b) as follows:“The Government that exists on date this Constitution comes into force shall continue to discharge the respective duties until the emergence of the new Government formed and assigned duties in accord with this Constitution.”

Concerning the suggestion to amend the Para 5, I would like to say that it is not an easy task to annul all the unnecessary laws at the same time or all at once. There may be laws that have not been repealed yet, but are contrary to the Constitution. Similar provisions are prescribed in drafting a new State constitution. It is
found that the 1974 Constitution features this point, similarly. So, I would say this expression is used, as prescribed in the State Constitutions.

Mr Chairman,

The Delegate Group of Other Invited Persons said “The Work Committee Chairman gave the clarifications regarding the chapter “Transitory Provisions” at the plenary session of the National Convention held on 13 November 2006.

Regarding the coming into force of the State Constitution, he called for advice and suggestions of the delegates to decide whether or not the point: “This Constitution shall come into force throughout the Union after its adoption in a nationwide referendum by more than half of all the people who have the right to vote.” should be adopted as a detailed basic principle.

Now, the seven-step Road Map is in the process of being implemented, and under the fourth step, the State Constitution will be approved through a referendum in accordance to the detailed basic principles to be adopted unanimously by the National Convention. In the process, seeking the approval of the people, approving the State Constitution by the votes of more than half of all the people who have the right to vote, coming into force of the State Constitution throughout the Union after its adoption in a referendum, that points conform with the constitutions of many other countries as well as the 1947 Constitution and 1974 Constitution of our nation. So, these points should be adopted as detailed basic principles.

Here, I would make a suggestion that the word“votes” should be replaced with the expression “assenting votes” because it can also be assumed as votes against, or abstentions. Therefore, the principle should be:“This Constitution shall come into force throughout the Union after its adoption in a referendum by the assenting votes of more than half of all the people who have the right to vote.” In our view if the word “assenting” is added to the detailed basic principle, its interpretation will become more precise.

As the abovementioned point is in accord with the adopted fundamental principles, it should be con-sidered seriously. The National Convention Convening Work Committee discussed the matter with the members of the panel of chairmen concerned. The Delegate Groups sent their opinions regarding the suggestion to the Work Committee in writing after the panels of chairmen had held discussions with the respective delegates. All the Delegate Groups suggested stating the para 1 as follows:

“This Constitution shall come into force throughout the Union after its adoption in a referendum by the assenting votes of more than half of all the people who have the right to vote.”

In accord with the great majority of the delegates the following detailed basic principles regarding the chapter — Transitory Provisions — have been adopted:

1. “This Constitution shall come into force throughout the Union after its adoption in a referendum by the assenting votes of more than half of all the people who have the right to vote.”

2. (a) “The State Peace and Devel opmentCouncil shall, continuing to exercise State sovereignty, carry out during the interval be tween the coming into force of this Constitution and the day the first session of the Pyidaungsu Hlutaw is convened, all the functions of the Pyidaungsu Hluttaw under the Constitution.”

(b) “The Government that exists on the date this Constitution comes into force shall continue to discharge the respective duties until the emer gence of the new Government formed and assigned duties in accord with this Constitution.”

3. “The work done by the State Peace and Development Council to bring the Constitution into force shall be deemed to have been carried out in accord with this Constitution.”

4. “All policy guidelines, laws, rules, regulations, notifications, proclamations, measures, responsibilities and rights of the State Peace and Development Council shall devolve on the Union of Myanmar.”

5. “Existing laws shall remain in force in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Pyidaungsu Hluttaw.”

6. “Existing rules, regulations, bye-laws, notifications, orders, directives and procedures shall remain in force in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Union Government.”

7. “All courts existing on the date of the coming into operation of this Constitution shall continue to exercise their jurisdiction until new courts are established by law in accord with this Constitution. All cases, civil, criminal and revenue, pending in the said courts, shall be disposed of in accord with the laws exercised on the date on which the cases came up for trial.”

8. “All functioning State service personnel of departmental organizations including Tatmadaw under the State Peace and Development Council on the day this Constitution comes into force shall continue in their functions unless otherwise prescribed by the Government of the Union of Myanmar.”