The following is the proposal submitted by the delegate group of intellectuals and intelligentsia on the detailed basic principles for the Chapters “Election”, “Political Parties” and “Provisions on State of Emergency” to be included in State constitution at the Plenary Session of the National Convention in Nyaunghnapin Camp in Hmawby Township, Yangon Division, on 5-12-2006.
Mr Chairman and members of the panel of chairmen, the chairman and members of the National Convention Convening Commission, officials of the NCC Work Committee and the NCC Management Committee, and NC delegates,
I am Daw Khin Mi Mi Tun of the Ministry of Health. For the sake of convenience and effectiveness, we divided the delegate group of intellectuals and intelligentsia into three small groups and each of the three groups held frank and cordial discussions about one of the three chapters namely the Chapter “Election”, the Chapter “Political Parties” and the Chapter “Provisions on State of Emergency” to be included in the State constitution. In addition, in the process, members of each group made suggestions and gave advice to the remaining two groups through co-ordinators of the group concerned.
The rough draft each of the proposals was read out group-wise to seek approval. And the three drafts were combined into the proposal of the whole group and we sought the approval. We would like to present our views about the points chapter- wise.
Firstly, I would like to present our views about the points proposed for the Chapter “Election”. Our discussions were based on the 1947 constitution, the 1948 Parliamentary Election Act, and 1974 constitution. And our discussion included the points about the Chapter “Election” such as designation of the kinds of citizens who are eligible and who have the right to vote, who have the right to stand for election, voting system, formation of the Pyidaungsu Election Commission, assigning duties to the commission, promulgation of necessary laws, designation of constituencies, and taking measures by respective Hluttaws to handle the matters related to the members. The Work Committee chairman made a thorough clarification to the detailed basic principles, so it was very convenient for us to hold discussions about the point. So, we are not going to present the points in a serial order, and we would like to deal with specific points.
Mr Chairman,
The Pyidaungsu Election Commission stands at a high level and its functions are very formidable. So, we would like to discuss the detailed basic principles that should be adopted to impeach the chairman or a member of the commission, if needed. We perceived that the Work Committee chairman explained that a Hluttaw member may be recalled for any of the reasons:
(1) treason;
(2) violation of any provision of the Constitution;
(3) misbehaviour;
(4) lack of qualifications prescribed in the Constitution for a Hluttaw member;
(5) inefficient discharge of duties.
Regarding impeachment of the chairman or a member of the Pyidaungsu Election Commission, the Work Committee chairman called for advice and suggestions to decide whether the point “If the President has to impeach the chairman or a member of the Pyidaungsu Election Commission, he should do so in accord with the provisions prescribed in the State Constitution on impeachment of the Union Chief Justice or any of Union Supreme Court judges.” should be adopted as a detailed basic principle.
The adopted detailed basic principle on impeachment of the Union Chief Justice or any of Union Supreme Court judges says:
(a) The President of the State shall impeach the Union Chief Justice or a Union Supreme Court judge for any of the following reasons:
(1) breach of allegiance to the State;
(2) violation of any of the provisions in the Constitution;
(3) moral turpitude;
(4) being disqualified for the post of the Chief Justice of the Union or a judge of the Supreme Court of the Union under the Constitution.
The sub-paragraphs from (b) to (k) of that paragraph enumerate the procedures to impeach such persons.
Mr Chairman,
The chairman and members of the Pyidaungsu Election Commission will have to discharge demanding and formidable tasks. So, if they are not capable of accomplishing such huge tasks, they are to be impeached and terminated from their duties, if necessary. In this regard, we consider that it is required to prescribe specific reasons and procedures to impeach such persons. So, we would like to make a suggestion that a detailed basic principle should adopted: “Regarding the impeachment of the chairman or a member of the Pyidaungsu Election Commission:
a) The President may impeach the chairman or a member of the Pyidaungsu Election Commission for any of the following reasons:
(1) treason;
(2) violation of any provision of the Constitution;
(3) misbehaviour;
(4) lack of qualifications prescribed for a Hluttaw member in the Constitution;
(5) inefficient discharge of duties.
b) procedures shall be taken in accordance with the provisions of the State constitution on impeachment of the chairman or a member of the Pyidaungsu Election Commission.
Mr Chairman,
Now, we have presented our views about the detailed basic principles for the Chapter “Election”. We would like to suggest that the following points should be adopted as detailed basic principles.
1. In electing members to Hluttaw—
(a) Every citizen who has turned 18 on the date on which elections commence, who is not disqualified by law, who is eligible to vote, and who has the right to vote under the law, shall have the right to vote.
(b) Every citizen who is eligible to vote and who has the right to vote by the law shall cast only a vote for a Hluttaw each at a constituency.
(c) In addition, people of national races concerned who are eligible to vote in accord with the provisions of the State Constitution shall have the right to vote in electing representatives of national races to the Region of State Hluttaw concerned.
(d) Ballot shall be exercised.
2. The following persons shall have no right to vote—
(a) members of the Religious Order;
(b) persons serving prison terms;
(c) persons adjudged to be of unsound mind as provided for in the relevant law;
(d) persons who have not yet been cleared from being declared destitute; and
(e) persons who are banned from voting under the election law.
3. “At an election, a candidate—
(a) shall be elected to a Hluttaw only.
(b) shall stand for election at one constituency only.
4. (a)Electorate living in the Union territories, or the Union territories designated by the Pyidaungsu Hluttaw under the law, shall elect members of the Pyithu Hluttaw and the Amyotha Hluttaw only.
(b) Save as otherwise prescribed by the Constitution, a Region or State Hluttaw member elected in a constituency that the Pyidaungsu Hluttaw has designated as a Union territory shall no longer stand as a Hluttaw member.
5. Every citizen who is not disqualified by the provisions of this Constitution and the provisions of the law regulating elections shall have the right to stand for election to a Hluttaw.
6. (a) A Hluttaw member may be recalled for any of the following reasons—
(1) treason;
(2) violation of any provision of the Constitution;
(3) misbehaviour;
(4) lack of qualifications prescribed in the Constitution for a Hluttaw member;
(5) inefficient discharge of duties.
(b) Complaint about the Hluttaw member endorsed by at least one percent of initial number of the voters of the constituency concerned shall be submitted to the Pyidaungsu Election Commission.
(c) Pyidaungsu Election Commission shall conduct investigation into the case in accord with the law.
(d) While the case is under investigation, the Hluttaw member concerned shall have the right to rebut the accusation in person or through a representative.
(e) The Pyidaungsu Election Commission shall, finding the accusation true and considering the Hluttaw member should no longer carry out duties, take action in accord with the law.
7. The Pyidaungsu Hluttaw shall prescribe necessary laws on election and recall.
8. (a) The President shall form a Pyidaungsu Hluttaw Election Commission. In the process, he may appoint at least five members including the chairman of the Pyidaungsu Election Commission in accord with the provisions on appointment of Union minister stated in the Constitution.
(b) The chairman and members of the Pyidaungsu Hluttaw Election Commission shall be the ones who—
(1) have turned 50 years of age.
(2) meet, except age limit, requirements set for Pyithu Hluttaw members.
(3) (aa) have served in the post of Union Chief Justice or Union Supreme Court judge; Region or State High Court judge or in a position equivalent to the post of Region or State High Court judge at least five years; (or)
(bb) have served in the post of judicial officer or law officer that is not lower than Region or State level for at least 10 years; (or)
(cc) have practised law as the advocate for at least 20 years; (or)
(dd) are deemed to be celebrities with prestige by the President.
(4) are well-experienced with good characters.
(5) comply with provisions, with which they have no right to stand for election as Pyithu Hluttaw members.
(6) are loyal to the State and the people.
(7) are not members of a political party.
(8) are not Hluttaw members.
(9) do not accept any other positions from which they can enjoy salaries and allowances.
9. Duties of the Pyidaungsu Election Commission are as follows:
(a) holding Hluttaw elections;
(b) supervising Hluttaw elections, and forming and supervising sub-commissions at all levels;
(c) designating and arranging constituencies;
(d) making and arranging lists of voters;
(e) putting off elections that are not in a position to be held in a free and fair way in some constituencies due to natural disasters or local security;
(f) issuing necessary laws on elections and political parties in accord with the provisions of this Constitution and procedures and directives in accord with the laws concerned;
(g) forming electoral benches to resolve electoral disputes;
(h) discharging duties assigned under a law.
10.If the President has to impeach the chairman or a member of the Pyidaungsu Election Commission, he shall do so in accord with the provisions prescribed in this Constitution on impeachment of the Union Chief Justice or any of Union Supreme Court judges.
11. (a)If the chairman or a member of the Pyidaungsu Election Commission in service wishes to resign of his own accord due to his health condition or any of other reasons, he may submit his resignation to the President.
(b) If the seat of the chairman or a member of the Pyidaungsu Election Commission is vacant due to resignation, termination of responsibilities, death, or any of other reasons, the President may appoint a new chairman or a member of the Pyidaungsu Election Commission in accord with the provisions on appointment of a Union minister enumerated in the State Constitution.
(c) If the chairman or a member of the Pyidaungsu Election Commission is a government employee, he shall be deemed to have resigned from civil service in accord with the existing civil service rules and regulations from the date he is appointed as the chairman or a member of the Pyidaungsu Election Commission.
12.The Pyidaungsu Election Commission’s action and measures over the following matters shall be final —
(a) electoral procedures; (b) appeals and amendments on electoral benches’ decisions and orders; (c) matters taken under political party law.
13.Responsibilities, powers and rights of the chairman and members of the Pyidaungsu Election Commission shall be prescribed by law.
14.The role of the chairman of the Pyidaungsu Election Commission is designated to be equivalent to the position of a Vice-President, and a member, to the position of a Union minister in order to make reference to responsibilities, powers and rights of the chairman and members of the Pyidaungsu Election Commission in prescribing laws.
Mr Chairman,
In conclusion, we would like to made suggestion that: “The period of staying abroad with the permission of the government shall be deemed to have settled in the Union” should be adopted as proviso of the detailed basic principle:
“Having settled in the Union of Myanmar for at least 10 consecutive years up to the time of being elected as Pyithu Hluttaw representative.”
Now, U Nanda Kyaw Swa (Supreme Court Advocate) of the delegate group of intellectuals and intelligentsia will read the next part of our proposal on detailed basic principles for the Chapter “Political Parties” and the Chapter “Provisions on State of Emergency”.
Mr Chairman,
Every nation has its own sovereign territory, and the citizens, the rightful owners of the sovereignty. The affairs of the nation and her people are the politics. Politics is to guarantee peace and security, freedom, food, clothing and shelter and high living standard for the people.
As Myanmar is in the process of realizing a genuine and discipline-flourishing democracy, she will have to permit the formation of political parties and the people to choose and elect the public representatives. The National Convention has already adopted the basic principle “the State shall enact necessary law for systematic formation of political parties for flourishing of genuine multiparty democracy system”. Hence, the systematically formed political parties that will truly serve public interest will emerge in the nation in realizing the genuine multiparty democracy system.
Mr Chairman,
In Myanmar as well as in the world, there have been parties keeping in the fore public interest and are loyal to the State. On the other hand, there are a lot of parties giving trouble to the people just to introduce their ideologies.
After Myanmar lost her independence, the national races of the hill regions and plains in the entire nation launched historic battles against the occupiers with all available weapons. The history to fight back the intruders with conviction achieved through life experiences and inherent patriotism is the history of Myanmar national forces.
In addition, organizations including YMBA, GCBA, Doh Bamar Asiayon, Pha-ta-pa-la and AFPFL were united in striving to regain independence. A national force was striving for national liberation with the conviction for the single goal that was the independence.
After the nation regained independence, she faced internal strife for nearly half a century during which people were killing one another for such reasons as political, ideological and factional prejudices inspired by the numerous imported isms. Despite her rich natural resources, the nation was far from achieving progress. Taking those events as historical lessons, we should establish only the parties that will keep in the fore the interest of the all the national races of the Union and the Union itself.
Acting as a political activist, a democracy activist, or a social activist in name only is not enough. There is no place for national traitors trying to break up the Union, and drag the people into direct or indirect alien enslavement. We fully support the adoption of the detailed basic principle “Political parties set the objective — non-disintegration of the Union, non-disintegration of national solidarity and perpetuation of sovereignty”.
Mr Chairman,
Throughout the past successive eras, political parties lost essence and objective as they were giving priority more to self-interest than the national interest. We agree the following detailed basic principle should be adopted.
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.
In launching their public organization campaigns, the parties should lay down work programmes stating their roles in solving the nation’s basic problems for the interest of the people. The following detailed basic principle should be laid down to safeguard the nation against anarchy.
3. In accordance with the law, a political party shall have the right to:
(a) organize freely;
(b) stand for elections.
Mr Chairman,
Political parties will have to lead the nation in accord with the practices of discipline- flourishing democracy to serve public interest. The continued existence of undisciplined parties and parties that violate the law should not be permitted. Concerning the matter of “no right to exist” explained by the Chairman of the National Convention Convening Work Committee, we agree that the para 4 and subparas (a), (b), (c), (d) and para five and the point “The Pyidaungsu Hluttaw shall enact necessary laws concerning the political parties” should be adopted as detailed basic principles.
Mr Chairman,
The delegate group of intellectuals and intelligentsia is in favour of adopting the following six points as detailed basic principles.
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 accordance with the law, a political party shall have the right to:
(a) organize freely;
(b) stand for elections.
“4.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.
5. 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.
6. “The Pyidaungsu Hluttaw shall enact necessary laws concerning the political parties.”
Mr Chairman,
The Chairman of the National Convention Convening Work Committee explained the detailed basic principles to be adopted for the chapter “Provisions on State of Emergency” at the plenary session of the National Convention.
The Work Committee Chairman’s clarification includes 23 points, of which seven are the provisions in connection with a Region and a State, a Union territory, and Self-Administered Area and others are concerned with the whole Union. The Work Committee Chairman explained the situation in which the President should declare a state of emergency, the powers he will have to exercise, the designation of a specific time and area, the organizations the President will have to consult with, the functions during and at the end of the term of Hluttaws, and the issuance of the termination of the ordinance to declare a state of emergency.
Mr Chairman,
First we have studied the measures that should be taken in a state of emergency in a Region or a State or a Union Territory or a Self-Administered Area. The para 1 says, “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 and the para, “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”.
The para 2 states, “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.” And “(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.” The para 3 (b) says that if no all the NDSC members can attend the meeting, 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 points concerning the declaration of a state of emergency are in conformity with the prescriptions of the past constitutions. The paras from 1 to 3 state that the President should declare a state of emergency after making due consultation with NDSC members even if all the members cannot attend the meeting to declare the ordinance in time, and the empowerment of legislative power without undermining the legislative functions of the parliaments. Hence the said three paras should be adopted.
Mr Chairman,
The para 4 (a) says that civil bodies of the area where the state of emergency order is in force if necessary can take the Tatmadaw’s assistance; the subpara (b) says that necessary martial law can be issued; that the martial law order will include the administrative powers and functions and judicial powers and functions concerning community peace and the rule of law. The para 5 and its subparas (a) and (b) state that 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. The para 6 says that the President from the date of the promulgation should present the measures taken to the nearest Pyidaungsu Hluttaw session within 60 days for approval; that he should convene an emergency session if the Hluttaw is not in session. The subparas (a), (b) and (c) of para 7 say that if the Pyidaungsu Hluttaw session approves the submission of the President concerning the matters, the ordinance having the force of law should be still in force till the fixed time and date; that if the period of the ordinance is extended, the ordinance having the force of law should be still in force till the extended time and date; and that the ordinance should cease to have effect from the date on which it is disapproved by the Pyidaungsu Hluttaw session.
We agree to adopt the paras from 4 to 7.
Mr Chairman,
The para 8 states, “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”; the para 9 and subparas (a) and (b) state, “In declaring a state of emergency under paragraph 8, the President shall declare the transfer of legislative, executive and judicial powers to the Commander in-Chief of the Defence Services to enable the latter to take necessary measures in order to restore the nation to normalcy. It shall be deemed that all the Hluttaws and leading bodies beginning from the date of declaration shall cease all their legislative functions. It shall be also deemed that when the term of the respective Hluttaws ended they are automatically dissolved.” and “Notwithstanding anything contained in the Constitution, all the members of the organizations and members of the leading bodies of the Self-Administered Division or Self-Administered Zones, except from the President and Vice-Presidents, assigned with the approval of the Hluttaws in accord with the Constitution are terminated from their duties beginning from the date the State power is transferred to the Commander-in-Chief of the Defence Services”; para 10 states, “The Commander-in-Chief of the Defence Services who has been transferred the State power shall have the power to exercise the legislative, executive and judicial powers. The Commander-in-Chief of the Defence Services shall exercise the legislative power by himself or shall form an organization with his own participation to exercise the legislative power. He shall empower a suitable organization or a suitable person to exercise the executive and judicial powers” and para 11 says, “The Commander-in-Chief of the Defence Services during the declaration of a state of emergency shall restrict or terminate a provision or more than one provision of the fundamental rights of citizens, as necessary”.
We are in favour of adopting the paras from 8 to 11.
Mr Chairman,
The paras from 12 to 16 concern the measures to be taken by the President. The subpara (a) of para 12 explains submission of the matter concerning the transfer of State power to the Commander-in-Chief of the Defence Services to the Pyidaungsu Hluttaw if the Pyidaungsu Hluttaw is in session, and the convening of an emergency session of the Pyidaungsu Hluttaw if it is not in session to submit the matter; and the para (b) says that the President should normally extend the period to six months at a time for two terms an should call the emergency session. The para 13 says that the President should, after receiving the report of the Commander-in-Chief of the Defence Services concerning the completion of the duties assigned to him, annul the order empowering the State power to the Commander-in-Chief of the Defence Services on the date of his submission after convening the Pyidaungsu Hluttaw if the term of the Pyidaungsu Hluttaw is not ended yet, or on the date he receives it from the Commander-in-Chief of the Defence Services if the term of the Pyidaungsu Hluttaw is ended. The para 14 says that the President should revoke the suspension of legislative functions of all the Hluttaws and leading bodies if the term of the Hluttaw has not ended yet; that the President should assign duties to the new Constitutional executive and judicial bodies in accord with the Constitution; that the bodies should discharge duties only for the remaining period of the term of the Hluttaw. The para 15 says that although the term of the Pyidaungsu Hluttaw has ended, the President, the Vice-Presidents, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw shall remain in their positions till their counterparts have been elected. The detailed principles contained in the paras from 12 to 15 should be adopted.
Mr Chairman,
The paras 16 and 17 state the matter concerning the extension of the emergency period and the NDSC’s issuance of the announcement to annul the order empowering the Commander-in-Chief of Defence Services to exercise State power. The para 18 states, “The National Defence and Security Council shall: “(a) exercise the legislative power, executive power and judicial power before the Hluttaws are formed in accord with the Constitution” and “(b) have the right to exercise the State power till the time a new President has been elected and Union level organizations formed in accord with the provisions contained in the Constitution. In so doing, the National Defence and Security Council shall exercise the legislative power by itself. The National Defence and Security Council shall empower a suitable organization or a suitable person to exercise the executive and judicial powers at Union, Region, State, Self-Administered Division and Self-Administered Zone levels.” The para 19 states the need to form the bodies mentioned in the para 18 with suitable persons. The para 20 says that the National Defence and Security Council should hold a general election in accord with the provisions of the Constitution within a period of six months beginning from the date on which the order is annulled. The para 21 says that the bodies formed according to the paragraph 19 should continue to carry out their functions till legislative, executive and judicial bodies have been formed according to the Constitution after the general election. The para 22 says that the National Defence and Security Council should exercise the State power in the name of the President.
The detailed basic principle stated in the paras from 16 to 22 should be adopted.
The para 23 states, “During the time a state of emergency has been declared, the measures taken officially by a local administrative body or a member of the body, or a civil body or a member of the body, or a military body or a member of the body, formed in order to take measures to restore security, stability, community peace and the rule of law soon on behalf of the President or during the period the Commander-in-Chief of Defence Services is exercising the State power or during the period the National Defence and Security Council is exercising the State power, shall be legitimate. No legal action shall be taken against them for those legitimate measures.”
As the bodies stated in the para 23 are serving the nation not in a peaceful and stable environment, they can face many difficulties. As they will have to do their duties at the risk to their lives, they should be protected by the Constitution. The measures taken by those bodies should be legitimate.
Hence the para 23 should be adopted. Hence, we support that all the 23 points explained by the Work Committee Chairman concerning the chapter “Provisions on State of Emergency” should be adopted.