|
|
||
| http://mission.itu.ch/MISSIONS/Myanmar | ||
Clarification made on laying down detailed
basic principles for Chapter "Provisions on State of Emergency" in
drafting the State Constitution Plenary Session of National Convention continues
Yangon, 30 Oct - Chairman of the National Convention Convening Work
Committee Chief Justice U Aung Toe, Vice-Chairman Attorney-General U Aye Maung
and Members of the National Convention Convening Work Committee read out the
clarification on laying down detailed basic principles for Chapter
"Provisions on State of Emergency" in drafting the State Co
Present on the occasion were Chairman of the National Convention
Convening Commission Secretary-1 of the State Peace and Development Council
Lt-Gen Thein Sein and Commission members, Chairman of the National Convention
Convening Work Committee Chief Justice U Aung Toe and Work Committee members,
Chairman of the National Convention Convening Management Committee
Auditor-General Maj-Gen Lun Maung and Management Committee members, chairmen
and officials of subcommittees, delegates of political parties National Unity
Party, Union Pa-O National Organization, Shan State Kokang Democratic Party,
Mro (or) Khami National Solidarity Organization, Lahu National Development
Party, Union Kayin League, Kokang Democracy and Unity Party and Wa National
Development Party, representatives-elect of National Unity Party and Mro (or)
Khami National Solidarity Organization, independent representatives, delegates
of national races from Kachin, Kayah, Kayin, Chin, Mon, Rakhine, Shan (South),
Shan (North) and Shan (East) States, Sagaing, Taninthayi, Bago, Magway,
Mandalay, Yangon and Ayeyawady Divisions, delegates of peasants from Kachin,
Kayah, Kayin, Chin, Mon, Rakhine, Shan (South), Shan (North) and Shan (East)
States, Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon and Ayeyawady
Divisions, delegates of intellectuals and intelligentsia, delegates of workers
from Kachin, Kayah, Kayin, Chin, Mon, Rakhine, Shan (South), Shan (North) and
Shan (East) States, Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon and
Ayeyawady Divisions, delegates of State Service Personnel from the State Peace
and Development Council Office, the President Office, the Pyithu Hluttaw
Office, the Government Office, the Supreme Court, the Attorney-General’s
Office, the Auditor-General’s Office, the Multi-party Democracy General
Election Commission Office, the Civil Service Selection and Training Board,
the Yangon City Development Committee, the Mandalay City Development Committee
and ministries, other invited delegates, delegates from Shan State (North)
Special Region-1, Shan State (North) Special Region-2, Shan State (North)
Special Region-3, Shan State (East) Special Region-4, Shan State (North)
Special Region-5, Shan State (South) Special Region-6, Kachin State Special
Region-1, Kachin State Special Region-2, Kayah State Special Region-3, Kayinni
National Democratic Party (KNDP) (Dragon) Group, Kayinni National Progressive
Party (KNPP) (Hoya), Kayinni National Unity and Solidarity Organization (Ka Ma
Sa Nya), Democratic Kayin Buddhist Organization (DKBA) and Haungthayaw Special
Region Group, Nyeinchanyay Myothit Group from Hpa-an Township of Kayin State,
Burma Communist Party (Rakhine State Group), Arakan Army (AA), Homein Region
Development and Welfare Group, Shwepyiaye (MTA), Manpan People’s Militia
Group, Mon Peace Group (Chaungchi Region) and Mon Nai Seik Chan Group that had
exchanged arms for peace.
Before the Plenary Session of the National Convention, Chairman of the
NCCC Secretary-1 Lt-Gen Thein Sein and Commission members, Chairman of the
NCCWC Chief Justice U Aung Toe and Work Committee members, Chairman of the
NCCMC Auditor-General Maj-Gen Lun Maung and Management Committee members,
chairmen and officials of the subcommittees, delegates of political parties,
representatives-elect, delegates of the National Races, Peasants, Workers,
Intellectuals and Intelligentsia, State Service Personnel, and Other Invited
Persons, signed attendance books at Pyidaungsu Hall and the recreation hall.
NCCC Chairman Secretary-1 Lt-Gen Thein Sein presided over the Plenary
Session of National Convention and Secretary of NCCC Minister for Information
Brig-Gen Kyaw Hsan acted as Master of Ceremonies.
The MC declared the start of meeting as 1,072 out of 1,081 delegates
were in attendance, accounting for 99.17 per cent, and the plenary session
commenced with the permission of the meeting chairman.
First, NCCWC Member U Tun Tun Oo read out the clarification made by the
Chairman of the NCCWC on laying down detailed basic principles for the Chapter
"Provisions on State of Emergency" in drafting the State
Constitution.
Next, Member of NCCWC Brig-Gen Mya Win presented clarification made by
the Chairman of the NCCWC on laying down detailed basic principles for the
Chapter "Provisions on State of Emergency" in drafting the State
Constitution. The Plenary Session took a break.
(Presentation made by Members of NCCWC U Tun Tun Oo and Brig-Gen Mya Win
is reported separately.)
When the Plenary Session resumed at 9.55 am, Chairman of NCCWC Chief
Justice U Aung Toe clarified matters on laying down detailed basic principles
for the Chapter "Provisions on State of Emergency" in drafting the
State Constitution.
Next, Vice-Chairman of NCCWC Attorney-General U Aye Maung presented
clarification made by the Chairman on laying down detailed basic principles
for the Chapter "Provisions on State of Emergency" in drafting the
State Constitution. The Plenary Session went into recess at 11 am.
(Clarification made by NCCWC Chairman Chief Justice U Aung Toe and
presentation made by NCCWC Vice-Chairman Attorney-General U Aye Maung will be
reported.)
The Plenary Session will continue on 10 November at 9 am.
Presentations on laying down detailed
basic principles for the Chapter "Political Parties"
Yangon, 31 Oct- The following is the presentation made at the Plenary
Session of the National Convention held in Nyaunghnapin Camp, Hmawby Township,
Yangon Division, yesterday, by Member of National Convention Convening Work
Committee Dr Tun Shin on clarification of the Chairman of the National
Convention Convening Work Committee on detailed basic principles for the
Chapter "Political Parties" to be included in drafting the State
Constitution.
Mr Chairman and
delegates,
Concerning political parties, a detailed basic principle "the State
shall enact necessary law for systematic formation of political parties for
flourishing of genuine multiparty democracy system" has already been
adopted. In accord with the adopted detailed basic principle there should be a
law to systematically establish political parties for flourishing of
discipline-flourishing genuine multiparty democracy system and emergence of
political parties that will correctly lead the citizens. Only if the
Constitution has the provisions, that are in accord with the political,
security, economic and social conditions and traditions and customs of the
nation, for political parties, can the respective laws that are enacted as
necessary be observed.
It is necessary for the National Convention to lay down detailed basic
principles in connection with political parties to be prescribed in the
Constitution. Explanation will be made on the matter in three parts as
mentioned in the following to assist the task of laying down the said detailed
basic principles.
(a) Objectives;
(b) Procedures;
(c) No right to exist.
Mr Chairman,
The Union of Myanmar that has been under the rule of her own monarchs
became a colony after three wars, the first one in 1824, the second in 1852,
and the third in 1885, with the colonialists. The nation regained independence
on 4 January 1948. But she faced many dangers of insurgency resulting from
colonialist instigation. Hence, the Tatmadaw had to safeguard the nation.
Every time the Union faced disintegration, the Tatmadaw had to safeguard it.
Time and again, the Tatmadaw has safeguarded the nation.
The neo-colonialists begrudging the unity of the national races of the
Union have been making attempts to break up the national unity and the Union
through various means to make Myanmar their minion. All the citizens should
always keep in the fore Our Three Main National Causes, with political
awareness. It is also necessary for political parties to safeguard Our Three
Main National Causes as a national duty.
Suggestions are to be made whether the point "Political parties set
the objective - non-disintegration of the Union, non-disintegration of
national solidarity and perpetuation of sovereignty" should be adopted as
a detailed basic principle or not.
Mr Chairman,
Even countries claiming themselves as firmly-established democracies had
to develop democracy stage by stage for many years in the past during which
they had sacrificed lots of blood and sweat. We have witnessed some nations
fall apart after a quick transition to practise discipline-flourishing genuine
democracy without having any experience in it.
Every individual country will be able to fulfil the people’s wish only
if it practises democracy that is in conformity with its history, social
standard, traditions and culture and customs. It is necessary for the people
to accept with conviction that the national cause is their concern. A nation
where a majority of people having the conviction becomes more democratic. If
there arise nation-wide internal problems they should be addressed and solved
by the country concerned through her own ways and systems.
Mr Chairman,
We have found that in practising a discipline-flourishing genuine
multiparty democracy, the essence of democracy depends on the citizens’
knowledge and understanding of the following factors:
(a) Public ability
to fully understand the political essence;
(b) Public faculty to express their opinions and wishes;
(c) Untiring public interest in politics;
(d) Public ability to maintain and control their political belief without
being deceived by others’ political propaganda and organization.
The political parties should have the capability to educate and organize
their members and the public as they have relations with the people to take
part in the elections en masse to express their opinions in accord with the
above-mentioned views, have untiring interest in the politics, fully
understand the essence of politics, and be free from being deceived by
others’ political propaganda and organization. In addition,
discipline-flourishing genuine democracy will flourish in the nation only if
there are parties that can maintain and realize their political aims.
Mr Chairman,
Now the political parties of some countries including Myanmar that
practise parliamentary democracy will be dealt with. Some parties gradually
change into organizations giving priority to regional affairs or personal role
rather than the cause of the entire nation.
Myanmar has already witnessed the weaknesses and loopholes of the
parliamentary democracy when she practised the system after regaining
Independence. A study of those weaknesses and loopholes shows that they were
the results of the lack of democracy experiences in history, the single party
governance in real terms in the name of parliamentary democracy, the public
intellectual progress that had not reached the level of defining and
exercising the rights and duties of democracy with correct conviction, the
political parties’ insufficient ability to train, educate and lead the
people to exercise democracy rights with a sense of duty, and the lack of
development in infrastructure that would help realize the essence of democracy
more fully.
It is found that it is required to lay down detailed basic principles
concerning the qualifications of political parties as necessary, after taking
the experiences Myanmar had faced as lessons, for the flourishing of genuine
multiparty democracy in the nation.
Mr Chairman,
A political party must abide by the Constitution and the existing laws
in addition to accepting and exercising a genuine multiparty democracy system.
Moreover, it must be legally registered.
Suggestion should be made whether to adopt the following detailed basic
principle as a point to be observed by the political parties:
A political party shall:
(a) accept and
practise discipline-flourishing genuine multiparty democracy.
(b) abide by the Constitution and the existing laws.
(c) be legally registered as a political party.
Mr Chairman,
A nation will develop only if it is headed by firm and
systematically-established political parties.
As for the existence of such parties, appropriate principles should be
adopted to the constitution, and the political parties should be formed
systematically according to the provisions contained in the constitution
without undermining the essence of multiparty democracy. A systematically
formed political party can exist as a political party and carry out
organizational work in the nation in accord with the law. In addition, it will
have the permission to stand for elections held in the nation.
The delegates will have to suggest whether the following detailed basic
principle should be laid down:
In accordance with the law, a political party shall have the right to:
(a) organize
freely;
(b) to stand for elections.
Mr Chairman,
If a political party having to keep in the fore the interest of the
nation and the people is declared as an unlawful organization in accord with
the existing law, naturally, its existence should not be permitted.
It is opined that the continued existence of a political organization
that has direct or indirect connections with an insurgent group launching an
armed rebellion against the State, an organization or persons the State has
designated as the ones committing terrorist acts or an organization the State
has declared unlawful, should not be permitted as its acts will undermine Our
Three Main National Causes.
Mr Chairman,
Political parties will accept and exercise in accord with Our Three Main
National Causes and genuine multiparty democracy system. They will abide by
the Constitution and the existing laws. In accord with the foreign policy
prescribed in the Constitution, the nation will exercise independent and
active non-aligned foreign policy.
A political party directly or indirectly receiving financial, material
and other assistance from the government or a religious organization, or other
organization or an individual person of a foreign country, will become an
organization going against the policies practised by the State. In this
situation, the said political party should not be allowed to exist as a
political party any more.
Mr Chairman,
According to the adopted basic principles and detailed basic principles,
religion shall not be abused for political purpose. If a political party
abuses religion for political purpose, its continued existence as a political
party should not be permitted any more.
If the body having the authority to register political parities finds
that a political party has infringed to any one of the provisions ensuring the
rights of the existence of political parties, the party’s registration
should be revoked.
Concerning the no right to exist of the political parties, the delegates
will have to hold discussions to decide whether the following detailed basic
principles should be laid down:
"1.The continued existence of a political party shall not be
permitted if :
(a)
it has been declared as an unlawful association in accord with the
existing law.
(b)
it contacts or abets the insurgent group waging the armed rebellion
against the State or the association or persons determined by the State to
have committed terrorist acts or the association declared to be unlawful
association directly or indirectly.
(c)
it directly or indirectly receives financial, material and other
assistance from the government or a religious association, or any other
association or an individual person of a foreign country.
(d)
it abuses religion for political purpose.
2. If the body having the authority to register political parties finds
that a political party is connected with anyone of the points stated in the
above-mentioned sub-paragraphs (a), (b), (c) or (d), the party’s
registration shall be revoked.
Mr Chairman,
Political parties have the duty to serve the interest of the nation and
the people resolutely. They should be the organizations capable of heading
towards flourishing of discipline-flourishing genuine multiparty democracy in
the entire Union and in the respective Regions and States in accord with the
nation’s political, security, economic and social conditions and traditions
and customs. It is opined that the Pyidaungsu Hluttaw should enact necessary
laws for the political parties to prevent deviation when they carry out the
leadership role.
Suggestions are to be made whether the following detailed principle
should be laid down:
"The Pyidaungsu Hluttaw shall enact necessary laws concerning the
political parties."
Mr Chairman,
Now, a collection of detailed basic principles concerning the Chapter
"Political Parties" will be presented as follows:
1.
Political parties set the objective - non-disintegration of the Union,
non-disintegration of national solidarity and perpetuation of sovereignty.
2.
A political party shall:
(a)
accept and practise discipline-flourishing genuine multiparty
democracy.
(b)
abide by the Constitution and the existing laws.
(c)
be legally registered as a political party.
3.
In accord with the law, a political party shall have the right to :
(a)
organize freely;
(b)
to stand for the elections.
1.
The continued existence of a political party shall not be permitted if
–
(a)
it has been declared as an unlawful organization in accord with the
existing law;
(b)
it makes connections with or provides support and assistance to
insurgent groups waging an armed rebellion against the State, organizations or
persons the State has announced as the ones committing terrorist acts or
organizations the State has declared unlawful;
(c)
it directly or indirectly receives financial, material and other
assistance from the government or a religious organization, or any other
organization or an individual person of a foreign country;
(d)
it abuses religion for political purpose.
2.
If the body having the authority to register political parities finds
that a political party is connected with any one of the points stated in the
above-mentioned subparagraphs (a), (b), (c) or (d), the party’s registration
shall be revoked.
6. The Pyidaungsu Hluttaw shall enact necessary laws concerning the
political parties.
Mr Chairman and delegates,
It is requested that the delegates to present their suggestions
concerning the detailed basic principles on the Chapter "Political
Parties" and other proposals if any. With this I conclude.
Presentations on laying down detailed
basic principles for Chapter "Provisions on State of Emergency"
Yangon, 31 Oct- The following is the presentation made at the Plenary
Session of the National Convention held in Nyaunghnapin Camp, Hmawby Township,
Yangon Division, today, by Members of National Convention Convening Work
Committee U Tun Tun Oo and Brig-Gen Mya Win on clarification of the Chairman
of the National Convention Convening Work Committee on detailed basic
principles for the Chapter "Provision on State of Emergency" to be
included in drafting the State Constitution.
Mr Chairman and delegates,
The National Convention has already laid down a separate Chapter heading
"Provisions State of Emergency". Clarification will be made the
National Convention Convening Work Committee’s study of the matters in
connection with the Chapter.
The National Convention has already adopted the following detailed basic
principles concerning the Chapter.
"(a) When there arises a state of emergency characterized by
inability to perform executive functions in accord with provisions of the
State Constitution in a region or state or a self-administered area, the
President of the State is empowered to exercise executive power in that
region, state or self-administered area and if necessary in doing so, the
President of the State is empowered to exercise legislative powers concerning
that region, state or self-administered area in accord with provisions of the
State Constitution;
"(b)when there arises or there is sufficient reason to arise a
state of emergency endangering life and property of the people in a region, a
state or a self-administered area, the Tatmadaw has the right, in accord with
provisions of the State Constitution, to preempt that danger and provide
protection;
"(c) when there arises a state of emergency that could cause
disintegration of the Union, disintegration of national solidarity and loss of
national sovereignty, due to take over of sovereign State power of attempts
therefore by wrongful forcible means such as insurgency or violence, the
Defence Services Commander-in-Chief has the right to take over and exercise
State power in accord with provisions of the State Constitution."
Mr Chairman,
Clarification will be made on the study of the Work Committee for the
National Convention to lay down detailed basic principles concerning the
declaration of the state of emergency and the empowerment of the authority to
declare martial law as necessary when the state of emergency has been
declared.
A state of emergency occurs in a nation where there arises a threat
endangering the national defence and security and the rule of law in some
regions or in the entire nation, or a foreign military intervention, or a
worsening political and economic situation and a natural calamity such as the
storm, flood, fire and earthquake. In this situation, the Head of State will
have to declare state of emergency and take necessary measures to restore the
situation into normalcy as he is entrusted with the power to do so by the
Constitution.
The constitutions of a large number of nations prescribe that it is
necessary for the Head of State after declaring a state of emergency to
present the measures taken by him and by the organizations and persons he has
empowered to exercise executive power during the emergency period to the
parliament concerned for approval, and that a state of emergency can be
declared only for a specific period.
Mr Chairman,
Presentation will be made on the provisions of the 1947 Constitution and
the 1974 Constitution concerning the matter. The sub-sections 1 and 3 of
section 94 of the 1947 Constitution prescribed, "94.(1) Notwithstanding
anything in section 92, the Parliament shall, if the President has declared by
Proclamation (in this Constitution referred to as a "Proclamation of
Emergency"), that a grave emergency exists whereby the security of the
Union is threatened, whether by war or internal disturbance, or that a grave
economic emergency affecting the Union has arisen in any part of the Union,
have power to make laws for a State or any part thereof with respect to any of
the matters enumerated in the State Legislative List.
"(3) A Proclamation of Emergency:
"(a) may be revoked by a subsequent Proclamation, and
"(b) shall cease to operate at the expiration of six months, unless
before the expiration of that period it has been approved by resolutions of
both Chambers of Parliament:
"Provided that, if and so often as a resolution approving the
continuance in force of such a Proclamation, the Proclamation shall, unless
revoked, continue in the force for a further period of twelve months from the
date on which under this sub-section it would otherwise have ceased to
operate."
In the 1974 Constitution, the Article 76 prescribed, "The Council
of State may declare a state of emergency and promulgate martial law in
specified areas or in the entire State, if an emergency affecting the defence
and security of the State should arise. It may order mobilization in certain
areas or in the entire State. Such measures shall be submitted for approval to
the nearest session of the Pyithu Hluttaw." According to the provision,
the power to declare a state of emergency is entrusted with the State Council,
but not with the President.
Mr Chairman,
After studying the 1947 Constitution and the constitutions of some
nations, it is found that the power to declare a state of emergency is vested
in the President. But the power is not totally and independently vested in the
President. The President has to submit the measures he has taken to the
legislative bodies for approval.
The study also shows that a state of emergency can be declared because
of war, foreign invasion, armed insurgency, natural disasters, economy and the
President’s assumption that a grave situation is endangering the security of
the entire nation or any part of the nation. If a proclamation on a state of
emergency is issued, the parliamentary approval must be sought for the
proclamation before the end of the prescribed period. It will cease to operate
at the expiration of the prescribed period, unless it has been approved by
resolutions of Parliament before the expiration of that period.
In the constitutions of some nations, the provisions for the Chapter has
been prescribed in accord with their situation and geographical conditions. It
is required to include provisions that are in conformity with our nation in
declaring a state of emergency.
According to the detailed basic principles adopted by the National
Convention, Regions and States and Self-Administered Areas will be designated
and set up. The legislative, executive and judicial powers will also be shared
with the Regions and States and Self-Administered Areas. In sharing the three
powers, the constant running of the State administrative machinery is of vital
importance. The administrative machinery will become ineffective because of
the deficiencies and weaknesses of the administrative bodies or because of the
unscrupulous persons trying to make gains out of those weaknesses.
The administrative machinery’s failure to run in a normal situation is
an ominous sign for the rule of law and community peace. In this situation, it
is necessary for the President to declare a state of emergency to restore the
situation in time. The act of declaring a state of emergency in an area is a
very important task that needs extra care. The matter should not be decided by
a single person. Failure to declare a state of emergency in time will lead the
problem to spread to other areas till it becomes out of control. If necessary
issuance of the declaration is delayed because of a heedless decision will
harm the political, economic and social stability of the State. Hence, it will
be more beneficial to the State if the President issued the declaration only
after making due consideration with an organization or a person responsible
for the nation’s defence and security. The fact that the President should
issue the declaration only after making coordination with the National Defence
and Security formed under the Constitution should be included in the detailed
basic principles. It will be more effective if the President after making
cooperation in advance issue an order, having the force of law, to declare a
state of emergency.
As regards the declaration of a state of emergency, discussions are to
be held and suggestions to be made whether the following detailed basic
principle should be laid down or not for the situation during which the
administrative functions cannot run in accord with the Constitution in a
Region or a State or a Union territory or a Self-Administered Area:
"1. If the President learns that the administrative functions
cannot be carried out in accord with the Constitution in a Region or a State
or a Union territory or a Self-Administered Area, he shall, after coordinating
with National Defence and Security Council, issue order having the force of
law to declare a state of emergency."
Mr Chairman,
The ineffectiveness of the administrative machinery will lead to
jeopardizing the community peace and the rule of law. In such situation, it is
specially necessary for the President of the State to be empowered to exercise
executive power to restore the rule of law and the community peace. It is not
easy for the President to carry out the task alone. The power to do so should
be vested in an organization formed with suitable persons of the respective
regions or a suitable person to carry out the task on behalf of the President.
Only then will the administration machinery be able to run normally.
It will be necessary for the President to exercise the legislative power
of the Region or State or the Self-Administered Area in addition to exercising
the executive power. The President should exercise the legislative power of
the area which is in a state of emergency. But it should be the legislative
power that concerns only the executive functions. In this matter, we assume
that the President should not entrust a suitable person or an organization
with the legislative power. It will be more appropriate if the President
exercises the legislative power that can be exercised only by the Hluttaw of
the respective areas as the Hluttaw is the legislative body.
Hence, discussions are to be held and suggestions to be made whether the
following detailed basic principle should be adopted or not. The said detailed
basic is concerned with the exercising of the executive power and the
legislative power in the areas where a state of emergency has been declared.
"2. In the matters concerning the declaration of a state of
emergency in accord with the paragraph 1, the President shall have the power
to:
"(a) exercise the executive power of the Region or State or
Self-Administered Area concerned. Moreover, he shall form a suitable
organization and entrust the executive power to an organization concerned, or
to a suitable person.
"(b) In doing so, out of the legislative matters of the respective
Regions and States and the Self-Administered Areas, the President shall have
the power to exercise the legislative power concerning the executive affairs.
But the legislative power shall not be entrusted to any organization or any
person."
Mr Chairman,
It has been already explained the declaration of a state of emergency by
the President and the measures he will have to take when a Region or State or
a Self-Administered Area is not able to carry out its administrative functions
in accord with the Constitution. Sometimes a threat endangering public lives
and property may occur in addition to a halt in the administrative machinery.
The ineffectiveness of the administrative machinery can be the result of
the weaknesses and failures of the persons and bodies of the executive sector.
But the occurrence of a situation that will harm public lives and property is
the result of the outside instigations. In accord with the saying, which goes,
"The predator is happy when the forest is on fire", looters taking
advantage of the situation may harm public lives and plunder of their property
just for self-interest. Failure to halt and restore the situation will
jeopardize security and stability of the State, community peace and the rule
of law.
It will surely be necessary for the President to declare a state of
emergency to restore the situation. As it has been explained in the above
paragraphs, he should consult with the National Defence and Security Council
in advance. What is important here is to protect public lives and property and
restore regional stability, community peace and the rule of law. Only then
will the respective regions enjoy security and economic stability and peace.
The President will have to declare a state of emergency after consulting
with the National Defence and Security Council in advance to protect public
lives and property and restore regional stability, community peace and the
rule of law. But if not all the members of the National Defence and Security
Council are present at the meeting with the President, there can be a delay in
protecting public lives and property because of the delay in declaring a state
of emergency in time. The NDSC members may be absent from the meeting due to
health and other reasons.
In such situation, the President should declare a state of emergency
after making coordination with the Commander-in-Chief of Defence Services, the
Deputy Commander-in-Chief of Defence Services, the Minister of Defence and the
Minister of Home Affairs, and the matter must be submitted to the NDSC soonest
for approval. So, public lives and property can be saved in time.
If there arises a situation endangering public lives and property in a
Region or a State, or a Self-Administered Area or in any part of them, the
President will have to declare a state of emergency. Concerning the matter,
discussions are to be held and suggestions to be made whether the following
detailed basic principle should be adopted or not.
"3.(a) when there arises or there is sufficient reason to occur a
state of emergency endangering life and property of the people in a Region or
a State or a Self-Administered Area or in any part of them, the President
after consulting with the National Defence and Security Council may issue an
order having the force of the law to declare a state of emergency.
"(b) If not all the members of the National Defence and Security
Council can attend the meeting in which the President consults with the
National Defence and Security Council as prescribed in the above paragraph
(a), the President, may after coordinating with the Commander-in-Chief of the
Defence Services, the Deputy Commander-in-Chief of the Defence Services, the
Minister of Defence and the Minister of Home Affairs who are the members,
declare a state of emergency in time. The declaration shall be submitted to
the National Defence and Security Council soonest for approval."
Mr Chairman,
If the situation arising from the ineffectiveness of the administrative
machinery of an area is beyond the capacity of an organization or a person to
restore stability and the administrative machinery back to normal, and when
another situation arises to endanger public lives and property, local
administrative organizations and civil organizations will be unable to control
it. Moreover there will be disturbances against the functions of those
organizations. In those circumstances, the local administrative bodies and
civil bodies of the respective areas will surely need the Tatmadaw’s
assistance to safely discharge their administrative and judicial duties well.
There are many examples in which a nation has to take the assistance of the
Armed Forces in a state of emergency. It is our view that there should be a
detailed basic principle to take Tatmadaw’s assistance. Martial law should
be issued, if the measures being taken by the local administrative and civil
bodies with the help of the Tatmadaw are ineffectiveness and the danger is not
dying down as it should be. It is opined that there should also be a detailed
basic principle concerning the issuance of martial law. The decree of martial
law should include administrative powers and functions and judicial powers and
functions of the administrative bodies. Only then will the administrative
bodies of the martial law be able to discharge their duties well.
Hence, discussions are to be held and suggestions to be made whether the
following detailed basic principle to take Tatmadaw’s assistance and to
issue martial law when necessary in an area in a state of emergency should be
adopted or not.
"4. In connection with the declaration of a state of emergency in
accord with the paragraph 3, the President shall:
"(a) take the assistance of the Tatmadaw to ensure local
administrative bodies and members, and civil bodies and members to effectively
carry out their functions in accord with the existing laws in order to swiftly
restore the situation of an area where a state of emergency has been declared.
"(b) issue martial law order. In doing so, the President shall
prescribe in the martial law order the administrative powers and functions and
judicial powers and functions concerning community peace and the rule of law
entrusted to the Commander-in-Chief of the Defence Services. The
Commander-in-Chief of the Defence Services shall exercise the powers and
functions or empower them to a suitable military administrative
official."
Mr Chairman,
Now, explanation will be made on the decrees necessary for the President
to declare a state of emergency and to transfer the State power to the
Commander-in-Chief of Defence Services. In some nations, they proclaim a state
of emergency when and if necessary. In other countries they issue the
emergency ordinance having the force of the law. In the 1947 Constitution,
irrevocable order was issued in declaring a state of emergency. In certain
countries, the provisions are made concerning the matter in accord with their
situation.
A detailed basic principle "Except Union budget matters, the
President shall have the right to issue an ordinance on administrative matters
that need immediate action during the intervals between sessions of the
Pyidaungsu Hluttaw" has been adopted for the matter concerning powers and
functions of the President in the Chapter "Sharing of the Executive
Power. According to it, the President in declaring a state of emergency or
issuing martial law order he should issue an ordinance in line with the powers
and functions vested in him so that it will be in conformity with the
above-mentioned detailed basic principle. But the state of emergency should be
only for the specific area and should include a specific period. There can be
a situation in which administrative and judicial functions are being carried
out with Tatmadaw’s assistance and care. In other places that are not
inclusive in a state of emergency, civil administrative bodies and civil
bodies should carry out the executive and judicial functions. If the area is
not designated precisely, there can be difficulties in carrying out the
functions. Similarly, if the time is not fixed precisely, there can be legal
disputes concerning the date on which a state of emergency comes into force.
Thus, the ordinance issued by the President should include the fixed time and
the specific area.
If the President declares a state of emergency, the people of the
inclusive area cannot enjoy all the rights ensured by the Constitution. It
will be difficult to differentiate between the good and the bad during the
time efforts are being made to restore stability, regional peace and the rule
of law because of the unrest ruled by anarchy. Hence, a provision or more than
one provision should be restricted during the time. For example, a restriction
should be made against civil unrest, assembling and procession. Verbal or
written orders should be issued to forbid the right of expression if necessary
to avoid occurrence of disturbances.
Concerning the issuance of an ordinance having the force of law by the
President, the specification of the inclusive area and duration, restriction
of or cessation of the fundamental rights of Citizens, discussion are to be
held and suggestions to be made whether the following detailed basic principle
should be adopted or not.
"5. The President when issues an ordinance having the force of law
and declares a state of emergency, shall:
"(a) specify the area covered by the ordinance and the duration.
"(b) if necessary, restrict or revoke one or more provisions of the
fundamental rights of the citizens residing in the area affected by a state of
emergency declaration."
Mr Chairman,
The President has to issue an ordinance to declare a state of emergency
or a martial law order in accord with the emergency need of the nation while
the Pyidaungsu Hluttaw is not in session. It is necessary for the President to
submit the ordinance to the Pyidaungsu Hluttaw for approval. Only then will it
be in conformity with the detailed basic principles concerning the powers and
functions of the President on the Chapter "Sharing of the Executive
Power". The President should submit the ordinance to the nearest session
of the Pyidaungsu Hluttaw or should call the Pyidaungsu Hluttaw if it is not
in session for approval.
Concerning the matter, the sub-sections (1) and (2) of section 110 of
the 1947 Constitution stated, " (1) If at any time when both Chambers of
Parliament are not in session, the President is satisfied that circumstances
exist which render it necessary for him to take immediate action, he may
promulgate such Ordinances as the circumstances appear to him to require. An
Ordinance promulgated under this section shall have the same force and effect
as an Act of the Parliament assented to by the President. (2) 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 as may be deemed
necessary."
The article 74 of the 1974 Constitution also prescribed, "The
Council of State may make, if necessary, ordinances having the force of law,
on matters other than those prescribed in Article 47, during the interval
between sessions of the Pyithu Hluttaw. 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 sub-paragraph (b) of the paragraph 11 on the "Powers and
Functions of the President" prescribes, "(b) If the President has
not withdrawn the ordinance issued under sub-paragraph (a), he shall submit
the ordinance for approval to the nearest session of the Pyidaungsu Hluttaw
within 60 days after the promulgation of the ordinance. If the Pyidaungsu
Hluttaw has not any schedule to hold a session within 60 days, the President
shall cause to convene a special session of the Pyidaungsu Hluttaw for
approval."
Concerning the matter of seeking Pyidaungsu Hluttaw approval by the
President after promulgation of an ordinance to declare a state of emergency,
discussions are to be held and suggestions to be made whether the following
detailed basic principle should be adopted or not.
"6. The President from the date of the promulgation shall present
the measures taken in accord with the paragraphs 1 and 2 and the measures
taken in accord with the paragraphs 3 and 4:
"(a) to the nearest Pyidaungsu Hluttaw session within 60 days for
approval.
"(b) shall cause to convene a special session of the Pyidaungsu
Hluttaw for approval, if the Pyidaungsu Hluttaw has not any schedule to hold a
session within 60 days."
Mr Chairman,
In declaring a state of emergency, an ordinance shall be issued when
there is a need to take immediate action for the State.
As the President promulgates the ordinance for immediate action for the
State concerning a state of emergency, he should present it to the nearest
session of the Pyidaungsu Hluttaw within the fixed time. The ordinance after
having been passed by the Hluttaw will have force of a law enacted by the
Hluttaw. Such orders shall cease to have effect from the date on which they
are disapproved by the Pyithu Hluttaw.
The power to issue an ordinance is vested in the President in accord
with the rules. Rules must be written in accord with the nation’s
geographical and other situations. There shall be provisions stating the
period in which the ordinance must be submitted to the Pyidaungsu Hluttaw and
the period during which an ordinance is still in force. Hence a detailed basic
principle should be laid down concerning the ordinance issued by the President
to be in force with the approval of the Pyidaungsu Hluttaw till the required
date and the ordinance that will cease to have effect from the date on which
it is disapproved by the Pyidaungsu Hluttaw.
The sub-paragraphs (c) and (d) of the paragraph 11 on the Powers and
Functions of the President prescribe, "(c) The ordinance shall cease to
have effect from the date on which it is disapproved by the Pyidaungsu
Hluttaw." and "(d) The ordinance issued by the President will be in
force with the approval of the Pyidaungsu Hluttaw till the required
date." The detailed basic principle must be in accord with the aforesaid
subparas that have already been adopted.
Hence, discussions are to be held and suggestions to be made whether the
following detailed basic principle should be adopted or not.
"7. (a) If the Pyidaungsu Hluttaw session approves the submission
of the President concerning the matters prescribed in the paragraph 6, the
ordinance having the force of law shall be still in force till the fixed time
and date.
"(b) In addition to the approval, if the period of the ordinance is
extended, the ordinance having the force of law shall be still in force till
the extended time and date.
"(c) The ordinance shall cease to have effect from the date on
which it is disapproved by the Pyidaungsu Hluttaw session."
Mr Chairman,
The matters that have been explained in the above paragraphs concern the
situation that can be put under control after the declaration of a state of
emergency. In certain cases, the nation may lose sovereignty because of
insurgency, unrest and terrorist acts it faces in a certain area or region or
in the whole nation. And because of the insurgency, unrest and terrorist acts,
the nation may face the danger of disintegration and disunity in which the
nation totally lacks solidarity under an unruly situation.
The worst is that the nation will fall under colonization due to the
loss of sovereignty and independence. Myanmar has faced such situations in
history. If such situation arises, the President must declare a state of
emergency in time. As it has already been explained, the President should
consult with the National Defence and Security Council, formed to advise the
President concerning national defence and security issues, in advance, rather
than doing it alone. He should issue an ordinance in declaring a state of
emergency. The promulgation of the ordinance should include the duration of
the ordinance that is in force in the entire nation.
Hence, discussions are to be held and suggestions to be made whether the
following detailed basic principle should be adopted or not.
"8. When there arises or there is sufficient reason to arise a
state of emergency that may cause disintegration of the Union, disintegration
of national solidarity and loss of national sovereignty, due to take over of
sovereign State power or attempts by wrongful forcible means such as
insurgency or violence, the President after consulting with the National
Defence and Security Council shall proclaim an ordinance and shall declare a
state of emergency. The proclamation shall stipulate that the area that the
ordinance is in force is the entire nation and that its duration is one year
from the date it is proclaimed."
Clarification on " Provisions on
State of Emergency" to be published
Yangon, 31 Oct- Clarification made by the Chairman of the National
Convention Convening Work Committee on laying down detailed basic principles
for the Chapter "Provisions on State of Emergency" for drafting the
State Constitution at the Plenary Session of the National Convention held at
Nyaunghnapin Camp in Hmawby Township, Yangon Division, today, will be
published in the dailies.
