“State Flag, State Seal, National Anthem and the Capital”,
“Transitory Provisions” and “General Provisions” presented
(28-12-2006)
The following is a translation of the proposals on laying down detailed basic principles for Chapters “Amendment of the Constitution”, “State Flag, State Seal, National Anthem and the Capital”, “Transitory Provisions” and “General Provisions” to be included in drafting the State Constitution presented by the Delegate Group of National Races at the Plenary Session of the National Convention held at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, Yangon Division, yesterday.
Esteemed Mr Chairman and members of the panel of chairmen, the Chairman of National Convention Convening Commission and members, the Chairman of National Convention Convening Work Committee and members, the Chairman of National Convention Convening Management Committee and members and National Convention delegates,
The Work Committee Chairman explained the matters concerning the adoption of the detailed basic principles for the chapters “Amendment of the Constitution”, “State Flag, State Seal, National Anthem, and the Capital”, “Transitory Provisions” and “General Provisions” at the plenary session of the National Convention held from 10 to 13 November 2006. With a view to serving the national interest, the delegate group of national races will present suggestions on the Work Committee Chairman’s explanations that will contribute towards writing the Constitution.
Delegates of the group comprise all walks of live of various national races living in 14 states and divisions. Based on individual suggestions, the paper is compiled state/division-wise.
The paper includes the suggestion in support of the detailed basic principles explained by the Work Committee Chairman while taking the past as lessons and assessing the current situation for perpetual unity and existence of the Union and separate suggestions.
Mr Chairman,
Concerning the chapter “Amendment of the Constitution” the Work Committee Chairman explained as follows.
“The nation after adopting and promulgating the Constitution will have to make amendments as necessary depending on time and situation. When the amendments of the Constitutions of some nations are studied, there are two ways to amend a Constitution. The first method is to hold a referendum to make an amendment of some provisions of the Constitution after 75 per cent of all the MPs or three-fourths of the MPs have made a prior approval to amend them. The second method is to amend some provisions of the Constitution with the approval of 75 per cent of all MPs or three-fourths of the MPs. The “Amendment of the Constitution” has been prescribed in the Constitution as a separate Chapter. In the Union of Myanmar also, the topic has been provided as a separate Chapter in both the 1947 Constitution and the 1974 Constitution.”
Mr Chairman,
The new Constitution will have two Hluttaws — the Pyithu Hluttaw and the Amyotha Hluttaw. The Pyidaungsu Hluttaw comprises the said two Hluttaws. Only the Pyidaungsu Hluttaw will draft bills and promulgate laws.
Instead of permitting to submit the Bill to make amendments directly to the Pyidaungsu Hluttaw, there should be a provision and the Bill should be submitted to the Pyidaungsu Hluttaw only if it is in accord with the said provision.
As regards the matter, the section 209 (2) of the 1947 Constitution prescribed, “After it has been passed by each of the Chambers of Parliament, the Bill shall be considered by both Chambers in joint sitting.” According to the said constitution, the Bill can be initiated in either Chamber of Parliament. It means that the Chamber that initiates the Bill will have to pass it to be discussed at a joint sitting. According to the new Constitution, such Bill can be submitted only to the Pyidaungsu Hluttaw. The Pyidaungsu Hluttaw should consider discussing the Bill only if 20 per cent of all the members of the Pyidaungsu Hluttaw submit it.
Mr Chairman,
When the amendments of the Constitutions of some nations are studied, there are two ways to amend a Constitution. The first method is to hold a referendum to make an amendment of some provisions of the Constitution after 75 per cent of all the MPs have made a prior approval to amend them. The second method is to amend some provisions of the Constitution with the approval of 75 per cent of all MPs or three-fourths of the MPs. In some countries constitutional amendments can be made with the proportionate ratio of all the MPs.
The 1947 Constitution of Myanmar prescribed, “The Bill shall be deemed to have been passed by both Chambers in joint sitting only when not less than two-thirds of the then members of both Chambers have voted in its favour.” The 1974 Constitution prescribed the amendment of the Constitution in a separate Chapter, which said, “The main articles shall be amended with the prior approval of 75 per cent of all the members of the Pyithu Hluttaw, in a nation-wide referendum only with a majority vote of more than half of those who have the right to vote. Provisions other than those mentioned in the Clause shall be amended only with a majority vote of 75 per cent of all the members of the Pyithu Hluttaw.”
According to our study, the Constitutions prescribe the amendment of the provisions chapter by chapter and article by article. Only then can the specific methods of the specific chapters and articles be clearly known. But the amendment of the provisions can be arranged chapter by Chapter and article by article only at the stage of drafting the Constitution. At present, the situation is not ripe yet to state the amendment of the provisions chapter by chapter and article by article as we are only at the stage of adopting detailed basic principles.
In laying down the detailed basic principles, specific methods for specific chapters should be designated based on the chapters that have been adopted. It is opined that, only at the stage of drafting the Constitution, the methods to be followed in making amendments of the respective chapters and articles should be prescribed in detail, so the Constitution will be clear and easy to understand.
We the delegate group of national races agree that because of the inclusion of the following points the detailed basic principles explained by the Work Committee Chairman for the chapter should be adopted.
(a) A Bill to amend the Constitution shall contain no other proposals.
(b) Such Bill to amend the Constitution shall be initiated in the Pyidaungsu Hluttaw which comprises the Pyithu Hluttaw and the Amyotha Hluttaw.
(c) The Pyidaungsu Hluttaw shall accept the Bill to amend the Constitution for consideration, if 20 per cent of all the Pyidaungsu Hluttaw members submit it.
(d) The adopted provisions of the State Fundamental Principles, the State Structure, the Formation of Legislature, the Formation of Executive, the Formation of Judiciary, and the State of Emergency shall be amended with the prior approval of more than 75 per cent of all the members of the Pyidaungsu Hluttaw, in a nation-wide referendum only with a majority vote of more than half of those who have the right to vote. Provisions other than those mentioned in the paragraph (a) shall be amended only with a majority vote of more than 75 per cent of all the members of the Pyidaungsu Hluttaw.
Mr Chairman,
We have already supported the four points explained by the Work Committee Chairman concerning the chapter. Now, we will present our following suggestion 1.
Separate suggestion
We would like to give a separate suggestion concerning the para 3 explained by the Work Committee Chairman as follows.
The Pyidaungsu Hluttaw will have to make constitutional amendments as and when necessary because of the globalization process or advancing time and situation. We are glad to know the inclusion of the expression “if 20 per cent of all the Pyidaungsu Hluttaw members submit it” in the para 3 as it ensures democracy rights for the minority. The Pyidaungsu Hluttaw after accepting and discussing the Bill will make a decision with majority votes to amend or annul the respective articles in accord with the prescriptions. It will not be proper if 20 per cent of all the Pyidaungsu Hluttaw members submit the same amended or rejected Bill to the Pyidaungsu Hluttaw again. We believe that submitting a proposal to amend anyone of the provisions of an enduring State Constitution is not appropriate. In our assumption there should be a prescribed time limit to re-submit the Bill whether it is approved or rejected. As the Bill to make constitutional amendments should not be resubmitted during the appropriate time of the Pyidaungsu Hluttaw term although there are 20 per cent of all the Pyidaungsu Hluttaw members to submit it, the matter should be put into consideration in enacting parliamentary laws and rules.
Suggestions will be made on the detailed basic principles to be adopted for the Chapter “State Flag, State Seal, National Anthem and the Capital” to be included in formulating the Constitution.
At the plenary session, the Work Committee Chairman explained, “Every independent and sovereign nation has its own specific State Flag, State Seal, National Anthem and the Capital. Some nations stated them in the Constitution and in some nations, the legislative assembly promulgates separate laws concerning them. Mostly, provisions concerning the State Flag focus on the means to stipulate and design it. Procedures and rules in connection with the State Flag and punishments for offences are prescribed in the separate law enacted by the legislative assembly.”
The stipulations of the State Flag mostly depend on history of a nation. Colours including white, red, blue, green, yellow, orange etc. are used in the State Flags in accord with the history of a nation.
The section 215 of the 1947 Constitution of the Union of Myanmar prescribed in detail the size, shape and colours of the State Flag. Unlike the 1947 Constitution, the Article 190 of the 1974 Constitution prescribed, “The State Flag shall be as shown below” together with the picture of the State Flag.
The colours used according to both the 1947 Constitution and the 1974 Constitution were red, white and blue. We have constantly believed that red stands for courage and decisiveness, white for purity and blue for peace, tranquillity and stability.
Mr Chairman,
The Work Committee Chairman also explained, “As the national races have been living in the Union of Myanmar in weal or woe and in love and unity since time immemorial, the National Convention has adopted the fundamental principles “The Union is constituted by Pyidaungsu (Union) system” and “no part of the territory of the Union, namely, Regions, States and Self-Administered areas etc., shall ever secede from the Union.” As all the national races are living through thick and thin and in unity, a big white star in an upward position representing the Union should be portrayed in the State Flag. The Union of Myanmar has been striving to develop her economy, with agriculture as the base. As Myanmar is an agro-based nation, the colour green that stands for peace and tranquillity and lush and verdant environment should be used. In addition, yellow that depicts solidarity, harmony, re-consolidation and love and unity of all the national races should be used in the Flag. In some countries, yellow is a royal colour representing the glory. Moreover, red, which means valour and decisiveness, should also be portrayed.”
He also said, “As the said three colours — green, yellow and red — portray the nation’s objective conditions and national unity, the Flag should be marked with green, yellow and red stripes in a proportionate ratio. On the left end of the green stripe at the top should be a big white star directing upwards in the State Flag.”
The delegate group of national races assumes that green to be used in the State Flag symbolizes serenity and sincerity. Fifty per cent of the nation’s land surface is covered by forests, and the nation has been laying down and implementing projects for all-round development of all economic sectors with agriculture as the base. The land of the nation is always green and lush with double cropping and mixed cropping the whole year. As green is the symbol of the nation, its inclusion in the State Flag is an honour for all of us.
Yellow stands for intellectual power. Yellow Padauk flowers that bloom during Myanmar New Year are also a character of Myanmar. According to Myanmar traditions and culture, it is believed that yellow Padauk flowers stand for joy, honor and glory. Myanmar is rich in underground and above-ground natural resources which are as valuable as gold. Hence, we call our country Golden Land (Golden Myanmar). Yellow symbolizing the rich natural resources that are as worthy as gold should be used in the State Flag as a noble colour.
We believe that red stands for courage and decisiveness. It also serve as a symbol of our resolution to safeguard our nation with our blood, sweat and lives. Hence, red should be portrayed in the State Flag with honour. The yellow-green-red three-colour flag was used during the struggle to free the nation from under the colonial rule. During the armed resistance to drive out the alien occupiers, the red flag with a white star on it was used to depict the valour of the patriots. Now the nation is enjoying political, economic and social progress. We believe that the ever-existing State Flag will be admirable and praiseworthy with yellow, green and red colours.
Mr Chairman,
We are in support of adopting the para 1 and 2 as explained by the Work Committee Chairman. Now, we will present a separate suggestion No 1 concerning the para 2. We have studied that procedures and rules in connection with the State Flag and punishments for offences are prescribed in the separate law enacted by the legislative assembly. We would like to suggest that if such law is enacted it should include the shape and measurement of the State Flag.
Explanation — to know and observe the shape and measurements of the State Flag, the measurements of the green, yellow and red stripes marked in a proportionate ratio, the location of the white star, and the measurement of the top point of the white star directing upwards.
Suggestion No 2:
We would like to suggest that the para 1 which prescribes “The Flag is marked with green, yellow and red stripes in a proportionate ratio. On the left end of the green stripe at the top of the Flag is a large white star directing upwards” should be stated as follows.
“The Flag is marked with green, yellow and red stripes in a proportionate ratio. On the left end of the Flag is a large white star directing upwards and touching all the green, yellow and red stripes.”
We present the suggestion with the following aims.
(a) to impressively and vividly portray the white star representing the Union
(b) to magnify the power of the white star that was the symbol of the successive revolutions
(c) to highlight mutual relations between the colours green, yellow and red that have their own meanings
(d) for the white star to be ever obvious in whatever position the Flag is hoisted
Mr Chairman,
Now, I will discuss the State Seal.
In the 1947 Constitution there is no provision concerning the State Seal. The 1974 Constitution showed the picture of the State seal and stated, “The State Seal shall be as shown below.” Stipulation of the State Seal is prescribed in the constitutions of some nations. In the constitutions of some nations, the stipulation of the State Seal is not included in the provisions, instead, their constitutions prescribe that the State Seal should be prescribed with a law enacted by the legislative assembly. But their constitutions have provisions stating that the State Seal should reflect the history, culture and customs of the race. In some countries, it is stated that after the State Seal has been adopted by the legislative assembly, it has to be ratified at a referendum.
Concerning the State, the National Convention has adopted the fundamental principles “sovereign power of the State is derived from the citizens and is in force in the whole country” and “the State shall be known as the Pyidaungsu Thamada Myanmar Naing-Ngan Daw (the Union of the Republic of Myanmar)”. Hence, the State Seal should include the map of the Union of Myanmar. In accord with the adopted fundamental principle “the State shall be known as the Pyidaungsu Thamada Myanmar Naing-Ngan Daw”, the words Pyidaungsu Thamada Myanmar Naing-Ngan Daw” should be included in the State Seal.
The white star that is the symbol of the anti-colonialist and anti-Fascist struggles launched with the people’s strength should also be included in it. The Seal should be decorated with the picture of the lion king used as a tradition in the State seals of the Union Myanmar, and Myanmar traditional floral arabesque.
In our view, inclusion of the nation’s map and the words “Pyidaungsu Thamada Myanmar Naing- Ngan Daw” in the State Seal further strengthens the spirit to love the nation and Union Spirit of the Myanmar people when they see the map. The white star will remind us of our armed resistance to drive out the Fascists. As the State Flag has the white star, portraying of it also in the State Seal is appropriate. Decorating the State Seal with the picture of the lion king and Myanmar traditional floral arabesque clearly reflects the valour of Myanmar people and their high standard of craftsmanship and beautify the Seal.
The inclusion of the map of the Union of Myanmar, the white star, and the picture of the lion king and Myanmar traditional floral arabesque ensures harmony between the State Flag and the State Seal and further enhances the image of the Seal. Hence, we are in support of the detailed basic principle in connection with the State Seal.
Mr Chairman,
We are in support of adopting the detailed basic principle explained by the Work Committee Chairman. We would like to present a separate suggestion in connection with the State Seal.
Separate suggestion
Two sprigs of Eugenia each flanking the map of Myanmar, located in the centre of the State Seal, on both sides in an upward position should be included in the Seal. The suggestion is meant to fill the spaces on the left and right sides of the map of Myanmar and to depict the auspiciousness, peace and success.
Mr Chairman,
Presentation will be made on the detailed basic principle that should be adopted to prescribe the National Anthem. The 1947 Constitution had no provision concerning the National Anthem.
The 1974 Constitution prescribed, “The Pyithu Hluttaw shall prescribe the National Anthem. Until a new National Anthem is prescribed, the present National Anthem shall be used.” When the nation wrote the 1974 Constitution, up to 150 songs were scrutinized with the help of musicians to prescribe a new National Anthem. But the great majority of the people loved and accepted the present National Anthem. They had no wish to accept anyone of the new anthems. Hence, the 1974 Constitution prescribed, “The Pyithu Hluttaw shall prescribe the National Anthem. Until a new National Anthem is prescribed the present National Anthem shall be used.”
The present Anthem has been used for over half a century. One of the fundamental principles adopted by the National Convention is “further burgeoning of the noblest and worthiest of worldly values such as justice, liberty and equality”. The present National Anthem also depicts the sincere policy — justice, freedom and equality.
Objectives of the National Convention include the adopted fundamental principles — nondisintegration of the Union; non-disintegration of national solidarity; perpetuity of sovereignty. Other fundamental principles “the Union is constituted by Pyidaungsu (Union) system” and “no part of the territory of the Union, namely regions, states and self-administered areas etc., shall ever secede from the Union” have already been adopted. The present National Anthem depicts the task of safeguarding the Union that we have inherited from our forefathers, at the risk of our lives, and serving the interest of the Union in harmony and unison.
The following points are our view concerning the State Seal.
(a) The present National Anthem depicts the sincere policy — justice, freedom and equality and the task of safeguarding the Union that we have inherited from our forefathers, at the risk of our lives, and serving the interest of the Union in harmony and unison; and the National Anthem is in harmony with Our Three Main national Causes — non-disintegration of the Union, non-disintegration of the national solidarity, and perpetuation of sovereignty.
(b) It calls for the ever existence of Myanmar that is the country owned by its people, and defines the task of the people to serve their country’s interest.
(c) It has been cherished and sung by the national races for many years and its words are in harmony with the fundamental principles adopted by the National Convention. We firmly believe that a new National Anthem will not be better than the present National Anthem.
We are in favour of adopting the following detailed basic principle.
“The present National Anthem shall be prescribed as the National Anthem.”
Mr Chairman,
Presentation will be made on the detailed basic principle concerning the designation of the nation’s capital.
The 1947 Constitution had no provision concerning the designation of the capital. But the 1974 Constitution prescribed, “The capital of the Republic is Rangoon.”
The capitals of most of the nations are located at the centre of the country. Every country designates the city that is the seat of the government as the capital. Mostly, a city located in a place that is lying in the nation’s hub and that is easy access is prescribed as the capital.
The Work Committee Chairman explained, “The government has already built the capital “Nay Pyi Taw”, in the region located in the central part of the country to further enhance national unity and facilitate transport with all the states and divisions. Now all the government institutions are carrying out their normal functions at their head offices set up in Nay Pyi Taw. Hence, Nay Pyi Taw where all the government institutions have established headquarters, should be prescribed as the nation's capital.”
The establishment of Nay Pyi Taw, the seat of the government, in the central part of the nation further enhances national unity and facilitates transport with all the states and divisions. We firmly believe that Nay Pyi Taw should be the Capital of Myanmar in accord with the era. And the new constitution will emerge soon.
Hence, the following detailed basic principle should be adopted.
Mr Chairman,
We have discussed in support of adopting the detailed basic principles explained by the Work Committee Chairman concerning the chapter “State Flag, State Seal, National Anthem and the Capital”. We have also presented three separate suggestions.
Transitory Provisions
Mr Chairman,
The chairman of the National Convention Convening Work Committee explained the points that should be adopted as detailed basic principles for the Chapter “Transitory Provisions” to be included in the State Constitution.
In his explanation, he said that 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”.
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.
Now, the government is implementing the State’s seven-steps Road Map for building a new nation. 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.
Under the historical necessities, the Tatmadaw had to take over the State responsibilities on 18 September 1988, and since then, it has been building a new nation. The State Peace and Development Council with the Commander-in-Chief of Defence Services as the chairman should continue to exercise exclusively the State’s sovereign powers during the interval between the coming into force of this Constitution and the day the first session of the Pyithu Hluttaw is convened.
Mr Chairman,
Respective Hluttaws will come into being under the State Constitution. The SPDC 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 SPDC will have to take necessary steps in accordance with the State Constitution to elect Hluttaw members.
So, power should be vested in the SPDC 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 SPDC to bring the Constitution into force shall be deemed to have been carried out in accord with the Constitution.
Mr Chairman,
The SPDC 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 be devolved 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.
Mr Chairman,
Before a new Constitution comes into force, there have been predominant rules, regulations, byelaws, 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.
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. Such matters cannot be completed on the date on which the Constitution comes into operation, and there must still have been many pending cases at the courts at all levels. So, jurisdiction should be devolved 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. And it is required to continue to exercise the existing laws before the State Constitution comes into force.
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 to ensure continuous operation of the State’s administrative machinery. We members of the delegate group of national races realize that there should be transitory provisions before the practice of legislative, executive and judicial powers based on the State Constitution to be framed with the basic principles and detailed basic principles the National Convention has adopted. The Work Committee chairman made clarification to the suitable points for the Chapter “Transitory Provisions” referring to the laws exercised at home and abroad. These points should be adopted as detailed basic principles due to many reasons such as:
(a) The date on which the State Constitution comes into force across the nation is fixed.
(b) Responsibilities are devolved on the State Peace and Development Council to take necessary steps during the interval between the coming into force of this Constitution and the day the first session of the Pyithu Hluttaw is convened.
(c) The Union of Myanmar will be able to continue practising the policy guidelines, laws, rules, regulations, orders, and proclamations existing in the time of the SPDC.
(d) Existing laws and rules will 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.
(e) Jurisdiction is devolved upon all existing courts to continue to hear the pending cases until new courts have been established under the Constitution.
(f) All functioning State service personnel of departmental organizations including Tatmadaw under the State Peace and Development Council continue in their functions unless otherwise prescribed by the Government of the Union of Myanmar.