Clarification made on laying down detailed basic principles for Chapters “Transitory Provisions” and “General Provisions”

Yangon, 13 Nov — The Secretary and members of the National Convention Convening Work Committee presented clarification made by Chairman of NCCWC Chief Justice U Aung Toe on laying down detailed basic principles for Chapters “Transitory Provisions” and “General Provisions” to be included in drafting the State Constitution at the Plenary Session of the National Convention held at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, Yangon Division, at 9 am today.

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-elect, 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 peasants, 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-1, Kayah 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 1,065 out of 1,080 delegates were in attendance, accounting for 98.61 per cent, and the plenary session commenced with the permission of the meeting chairman.

First, Secretary of NCCWC U Thaung Nyunt presented clarification made by Chairman of NCCWC Chief Justice U Aung Toe on laying down detailed basic principles for Chapter “Transitory Provisions”.

(Presentation made by NCCWC Secretary U Thaung Nyunt is reported separately.)

Next, Member of NCCWC Deputy Attorney-General Dr Tun Shin presented clarification made by Chairman of NCCWC Chief Justice U Aung Toe on laying down detailed basic principles for Chapter “General Provisions”. The Plenary Session took a break.

When the Plenary Session resumed at 10.10 am, Member of NCCWC U Tun Tun Oo presented clarification made by Chairman of NCCWC Chief Justice U Aung Toe on laying down detailed basic principles for Chapter “General Provisions”.

Member of NCCWC Brig-Gen Mya Win continued to present clarification made by Chairman of NCCWC Chief Justice U Aung Toe on laying down detailed basic principles for Chapter “General Provisions”. The Plenary Session went into recess at 10.50 am.

(Presentation made by NCCWC Members Deputy Attorney-General Dr Tun Shin, U Tun Tun Oo and Brig-Gen Mya Win will be reported.)

It is required to prescribe transitory provisions in the State Constitution

Yangon, 13 Nov— The following is the presentation made at the Plenary Session of the National Convention held in Nyaunghnapin Camp, Hmawby Township, Yangon Division, today, by Secretary of the National Convention Convening Work Committee U Thaung Nyunt on clarification made by the Chairman of National Convention Convening Work Committee on laying down detailed basic principles for the Chapter “Transitory Provisions” to be included in drafting the State Constitution.

Mr Chairman and delegates,

Clarification will be made on the points that should be adopted as detailed basic principles for the Chapter “Transitory Provisions” to be included in the State Constitution.

In formulating a State Constitution, the situation of a nation before the Constitution does not come into force is somewhat different from that after the Constitution comes into force. It is, indeed, transition from one system to another. In the process, there follow changes in the major pillars—legislation, execution and jurisdiction—and economic and social infrastructures during the transitional period.

It is required to prescribe transitory provisions in the State Constitution to ensure continuous exercise of State sovereign powers as well as charter, duties and responsibilities to be carried out during the transitional period.

It is found that the State Constitutions of the nations of the world carry transitory provisions, and so does the 1947 Constitution of Myanmar in Sections 233 and 234 of Chapter XIV.

The 1974 Constitution does not feature a separate heading for transitory provisions, but transitory provisions are prescribed in its Chapter XVI “General Provisions”.

Mr Chairman,

After a State Constitution is drafted, only when the date, on which a Constitution comes into force, is mentioned, will the Constitution come into operation on that date.

Section 234 of the 1947 Constitution says, “This Constitution shall come into operation on such date as the Provisional President may announce by proclamation not being later than the eighth day of Kason waxing, 1310 BE (fifteenth day of April, 1948 AD)”.

And Article 195 of the 1974 Constitution says, “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”.

Now, the following seven steps have been laid down and are being put into action for the building of a new nation. They are:

(1)  - Reconvening of the National Convention that has been adjourned since 1996.
(2) - After the successful holding of the National Convention, step-by-step implementation of the process necessary for the emergence of a genuine and discipline-flourishing democratic system.
(3) - Drafting of a new Constitution in accord with basic principles and detailed basic principles laid down by the National Convention.
(4) - Adoption of the Constitution through a national referendum.
(5) - Holding of free and fair elections for Hluttaws (Legislative bodies) according to the new Constitution.
(6) - Convening of Hluttaws attended by Hluttaw members in accord with the new Constitution.
(7) - Building a modern, developed and democratic nation by the State leaders elected by the Hluttaw; and the government and other central organs formed by the Hluttaw.
Of the seven steps, the fourth is designed to adopt through a nationwide referendum the State Constitution (draft) drafted in accord with the basic principles and detailed basic principles laid down by the National Convention.
In accord with the work programme, the draft will be adopted through a referendum.
Therefore, regarding the coming into force of the State Constitution, discussions are to be held and suggestions to be made whether 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.

Mr Chairman,

After the State Constitution comes into force, the State Peace and Development Council will have to hand over the power to the Pyidaungsu Hluttaw that will emerge under the State Constitution. Hluttaws to be formed under the State Constitution will not emerge immediately, but only after Hluttaw members have been elected. The three sovereign powers of the State — legislative, executive and judicial powers — can be exercised continuously only if the State Peace and Development Council exercises the three sovereign powers during the transitional period between the adoption of the State Constitution and coming to being, of the Hluttaws and then hands them over. Section (231) of the 1947 Constitution says,

“(1) Until the first meeting of the Union Parliament duly constituted under Chapter VI, this Constituent Assembly shall itself exercise all the powers, discharge all the duties and enjoy all the privileges of both Chambers of Parliament.
(2) Such person as the Constituent Assembly shall have elected in this behalf shall be the Provisional President of the Union until a President has been duly elected under Chapter V and shall exercise all the powers and discharge all the duties conferred or impose upon the President by this Constitution.
A period of service as Provisional President shall not count as a term of service for the purposes of sub-section (2) of section 48.
(3) Such persons as shall have been elected in this behalf by the Constituent Assembly shall be the Prime Minister and other members of the Provisional Union Government, until the President duly elected under Chapter V has appointed other persons in accordance with the provisions of section 56”.

Article 196 of the 1974 Constitution says:

“The Revolutionary Council of the Union of Burma 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 Pyithu Hluttaw is convened, all the functions of the Pyithu Hluttaw under the Constitution. The work done by the Revolutionary Council to bring the Constitution into force shall be deemed to have been carried out in accordance with the Constitution”.

So, with respect to ensuring continuous exercise of State sovereignty during the interval between the coming into force of this Constitution and the day the first session of the Pyidaungsu Hlutaw is convened, discussions are to be held and suggestions to be made whether the point:

“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 Hlutaw is convened, all the functions of the Pyidaungsu Hluttaw under the Constitution.” should be adopted as a detailed basic principle.

Mr Chairman,

The State Peace and Development Council will have to systematically hand over State power to the Pyidaungsu Hluttaw, one of the Hluttaws that will come into existence after the emergence of the State constitution. However, Hluttaws will not emerge shortly after the adoption of the State Constitution. And Hluttaw members will be elected in accord with the State Constitution. In the process, the State Peace and Development Council will have to take necessary steps in accord with the State Constitution.

So, power should be vested in the State Peace and Development Council to carry out legislative functions on behalf of the Pyidaungsu Hluttaw heretofore the Pyidaungsu Hluttaw comes into existence. In this regard, it is required to lay down a principle to recognize that 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 the Constitution.

Article 196 of the 1974 Constitution says, “The work done by the Revolutionary Council to bring the Constitution into force shall be deemed to have been carried out in accordance with this Constitution”. Therefore, regarding the work done by the State Peace and Development Council to bring the State Constitution into force till the date on which the State Constitution come into force, discussions are to be held and suggestions to be made to decide whether the point:

“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.”

should be adopted as a detailed basic principle.

Mr Chairman,

The State Peace and Development Council has built basic foundations to realize the State objectives, and issued policy guidelines, laws, rules, regulations, orders, and proclamations to expedite all-round tasks for building a modern developed democratic nation. Accordingly, a detailed basic principle “All measures, responsibilities and rights of the State Peace and Development Council shall devolve on the Pyidaungsu Hluttaw that will come into being under the State Constitution” should be laid down. The future Pyidaungsu Hluttaw and the Government of the Union of Myanmar have the rights to exercise powers, responsibilities and privileges the State Constitution bestowed on them. So, they will have to continue in their functions.

Article 199 of the 1974 Constitution says, “All policy guidelines, laws, rules, regulations, notifications, proclamations, measures, responsibilities and rights of the Revolutionary Council of the Union of Burma shall devolve on the Socialist Republic of the Union of Burma”.

Therefore, regarding the devolving on the State’s policy guidelines, laws, rules, regulations, notifications, proclamations, measures, responsibilities and rights, discussions are to be held and suggestions to be made whether the point:

“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”

should be adopted as a detailed basic principle.

Mr Chairman,

Before a new Constitution comes into operation, the existing laws continue to be in force in a nation. After the new Constitution comes into operation, without prejudice to the new Constitution, the existing laws are to remain in force. And any existing laws contrary to the Constitution are to be amended or repealed from time to time by the Pyidaungsu Hluttaw.

Section 226 of the 1947 Constitution prescribes,

“(1) Subject to this Constitution and to the extent to which they are not inconsistent therewith, the existing laws shall continue to be in force until the same or any of them shall have been repealed or amended by a competent legislature or other competent authority.

“(2) The President of the Union may, by Order, provide that as from such date as may be specified in the Order any existing law shall, until repealed or amended by the Union Parliament or other competent authority, have effect subject to such adaptations and modifications as appear to him to be necessary or expedient with due regard to the provisions of this Constitution.

And paragraph (b) of Article 202 of the 1974 Constitution says:

“Existing laws and rules 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 Pyithu Hluttaw”.

Therefore, regarding the existing laws, discussions are to be held and suggestions to be made whether the point:

“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 adopted as a detailed basic principle.

Mr Chairman,

Before a new Constitution comes into force, there have been predominant rules, regulations, bye-laws, notifications, orders, directives and procedures in a country. After the new Constitution comes into operation, these existing rules, regulations, bye-laws, notifications, orders, directives and procedures are to remain in force if they are not contrary to the new Constitution, and to be annulled if they are contrary to the new Constitution.

Paragraphs (c), (d), (e) and (f) of Article 202 of the 1974 Constitution prescribe:

“(c) Existing regulations, bye-laws, rules, notifications, orders, directives and procedures shall remain in force in so far as they not contrary to this Constitution until and unless they are repealed or amended by the Council of State.

“(d) Existing laws and rules shall be repealed or amended by the Pyithu Hluttaw to bring them into consonance with this Constitution.

“(e) Existing regulations, bye-laws, notifications, orders, directives and procedures shall be repealed or amended by the Council of State to bring them into consonance with this Constitution.

“(f) Existing laws, rules, regulations, bye-laws, notifications, orders, directives, and procedures shall, pending their repeal or amendment, be interpreted and acted upon by the Central and Local Organs of State Power in the spirit of this Constitution”.

Therefore, regarding the existing rules, regulations, bye-laws, notifications, orders, directives and procedures to remain in force, discussions are to be held and suggestions to be made whether the point:

“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.” should be adopted as a detailed basic principle.

Mr Chairman,

After a Constitution comes into force, it is needed to take steps such as judicial formation or establishment of courts at different levels, and devolving of jurisdiction and powers to courts at all levels in accord with the Constitution. As it has been explained, such matters cannot be completed on the date on which the Constitution comes into operation. So, jurisdiction should devolve upon all courts existing on the date of the coming into operation of the Constitution until new courts have been established by the law in accord with the Constitution to ensure continuous exercise of jurisdiction during the transitional period.

Therefore, regarding the cases pending in courts at all levels on the date on which the Constitution comes into operation, discussions are to be held and suggestions to be made whether the point:

“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.” should be adopted as a detailed basic principle.

Mr Chairman,

All functioning administrative bodies or governmental bodies and service personnel are to continue in their functions. It is also required to ensure regular attendance of the service personnel.

Section 229 of the 1947 Constitution prescribes, “All persons who were in the service of the Government of Burma immediately before the coming into operation of this Constitution shall continue in service until the Union Government provide otherwise”.

And paragraphs (g) and (h) of Article 202 of the 174 Constitution prescribe:

“(g) The Bodies of Public Services shall perform their duties in the spirit of this Constitution. “(h) All functioning organs and all public servants and workers serving under the Revolutionary Council of the Union of Burma on the day this Constitution comes into force shall continue in their functions unless otherwise prescribed by the Council of State”.

Therefore, regarding State service personnel, discussions are to be held and suggestions to be made whether the point:

“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”

should be adopted as a detailed basic principle.

Mr Chairman,

Based on the findings and assessments that have been presented, a collection of the points that should be adopted for the Chapter “Transitory Provisions” will be presented.

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 Hlutaw 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 and delegates,

In conclusion,delegates are urged again to hold discussions and make suggestions whether the points that have been presented regarding the Chapter “Transitory Provisions” should be adopted as the detailed basic principles.

Clarification on “ General Provisions” to be published

Yangon, 13 Nov— Clarification made by the Chairman of the National Convention Convening Work Committee on laying down detailed basic principles for the Chapter “General Provisions” 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.