Proposals on Chapters “Amendment of the Constitution”,
“State Flag, State Seal, National Anthem and the Capital”,
“Transitory Provisions” and “General Provisions” presented
(27-12-2006)

U Tin Oo of Kayah State

General 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 “General Provisions” to be included in the State Constitution.

A Constitution is the main law that reflects a nation’s history and portrays the structure of that nation. Moreover, the Constitution is the main pillar of the laws of a nation stipulating the sharing of the three branches of power — the legislative power, the executive power and the judicial power — and the political and economic system. Hence, all the laws of a nation should be in conformity with the Constitution. In the 1974 Constitution of our nation and constitutions of some nations, it is stated that the Constitution is the basic law of laws of the State.

Concerning the General Provisions, the following fundamental principles have already been laid down by the plenary session of the National Convention on 16 September 1993.

(1) Myanmar language is the official language.

(2) The State fundamental principles are the guidelines to be followed by the legislative Hluttaws in enacting laws and interpreting provisions of the State Constitution and of other laws.

The State fundamental principles have been laid down after making considerations from various aspects to be in conformity with the current conditions for the nation to enjoy greater degree of peace, stability and prosperity. Hence, the State fundamental principles are guidelines to be followed by the legislative Hluttaws in enacting laws and in interpreting provisions of the State Constitution and other laws. And it is prescribed in the 1974 Constitution of Myanmar and constitutions of some nations.

It is perceived that Myanmar language was prescribed as the official language both in the 1947 constitution and in the 1974 constitution. Myanmar language is used widely everywhere across the nation. It should be used as the official language to ensure equality and smooth relations between the people and the government, and between governmental organizations. So there has been adopted a detailed basic principle “Myanmar language is the official language”.

Mr Chairman,

Only the Constitution written in Myanmar language will be adopted and promulgated. Afterwards, the Constitution may be translated into English and other languages as necessary. Although the Constitution may be translated into various languages, only the Constitution written in Myanmar language will be adopted and promulgated. Hence, if there arises a matter to interpret a provision it will be based on Myanmar text. Similar provisions are prescribed in the 1974 constitution.

Mr Chairman,

After adopting and promulgating the State Constitution, there may be a need to interpret the exact meaning of an expression in practically implementing the Constitution. There should be a law to interpret and refer an expression in the adopted Constitution if there is no specific interpretation.

When need arises to interpret an expression included in the State Constitution that is being drawn under the basic principles and detailed basic principles, the Expressions Law should be referred.

Mr Chairman,

He said that the Constitution of a nation is the milestone of that nation. Every country promulgates its Constitution in conformity with its own prevailing economic and social conditions. And the Constitution is worthy of recording as a historic landmark. So, the manuscript of the Constitution should be kept safely for a long time. The country has the National Records and Archives Law. In accord with the law, the Myanmar manuscript of the Constitution, that has been adopted and promulgated through a referendum, should be enrolled for record in the National Archives. The manuscript is the conclusive evidence of the provisions contained in the Constitution.

One of the basic principles on the economy says:

“The State permits all economic forces such as the State itself, regional organizations, cooperative organizations, joint-venture organizations and private concerns, etc. to take part in economic activities for the development of the national economy.”

It implies that the State guarantees the participation of all the economic forces in the economic activities for the national economic development. Simultaneously, some economic enterprises are operated solely by the State under the conditions. Now, the kinds of economic enterprises the government has to solely operate under “the State-Owned Economic Enterprises Law” have been prescribed. However, it is prescribed that the government may permit a person or an organization to run any of the economic enterprises, which the government has to solely operate, under the terms and conditions in the interests of the State.

Now, the nation has seen many economic enterprises that are jointly run with the government based on mutual interest, or internal or external organizations or persons are running under the terms and conditions stipulated by the State. After the State Constitution comes into force, there will emerge economic enterprises the Union government will have to run solely, and economic enterprises that Region government or State government will have to run in accord with the provisions of the State Constitution. And there may arise a situation for which a Region or State government is to be vested with the right to run one of the economic enterprises which the Union government has to run solely, in the interests of the State. Moreover, there may arise situations for which a cooperative society or an economic organization or a person may enjoy the right to run such economic enterprises. It is assumed that a detailed basic principle should be adopted that in such a situation, a Region or State government, a cooperative society or a person can run such kinds of economic enterprises with the government through joint-venture system or under agreements in the interests of the State.

Mr Chairman,

There have been many treaties and agreements the Government of the Union of Myanmar ratified after regaining independence with the governments of other countries. Also in the time of the State Peace and Development Council, the government has ratified treaties and agreements with the governments of many other countries including ASEAN nations. In this regard, the Union of Myanmar will have to honour the legitimate obligations arising out of any treaties or agreements which have been in force before the coming into force of this Constitution between the Government of Myanmar and the Government of any other State provided that these countries honour any reciprocal obligations towards the Union of Myanmar. It is found that the 1947 Constitution of our country and the State constitutions of many other countries carry similar provisions.

Any proceedings relating to contracts signed with the Government of the Union of Myanmar or liabilities which might have been brought against the Government of the Union of Myanmar before this Constitution comes into force, may be brought for losses against the Union Government to be formed under this Constitution. Similarly, if given the similar right, the Government of the Union of Myanmar should also have the right to sue the bodies concerned. The 1947 Constitution of our country and the State constitutions of some countries prescribe similar provisions.

Likewise, the Union of Republic of Myanmar that will come into existence after this Constitution comes into force should have the right to sue and may be sued by the name of the Union of Republic of Myanmar. The 1947 Constitution of our country and the State constitutions of some countries prescribe similar provisions.

Mr Chairman,

The detailed basic principles the National Convention has adopted for the Chapter “General Provisions” cover forming of a constitutional tribunal and fixing its functions.

The Work Committee chairman explained that a constitutional tribunal shall be set up to interpret provisions of the State Constitution, to scrutinize whether or not laws enacted by the Pyidaungsu Hluttaw, the Region Hluttaws and the State Hluttaws and functions of executive authorities of Pyidaungsu, Regions, States and Self- Administered Areas are in conformity with the State Constitution, to make decisions on disputes in connection with the State Constitution between Pyidaungsu and Regions, between Pyidaungsu and States, between Regions and States, among Regions, among States, and between Regions or States and Self- Administered Areas and among Self-Administered Areas themselves to perform other duties prescribed in the State Constitution. The tasks to be carried out by the Constitutional Tribunal are stated in these detailed basic principles. So, these tasks should be prescribed in the detailed basic principles as necessary in order that they can be scrutinized and decided when the President informs the matters regarding the Union territories.

The courts have to hear criminal cases and civil law cases in accord with the existing laws. In the process, if there is a dispute as to whether a provision of a law is in conformity with the Constitution in a case being heard by a court, the Constitutional Tribunal is responsible for deciding such a case.

The court concerned should suspend the case it is hearing and submit its views to the Constitutional Tribunal in accord with the procedures for the decision. Regarding the dispute, the decision of the Constitutional Tribunal should apply all the cases, and the decision should be final.

The Constitutional Tribunal is responsible for interpreting the provisions of the State Constitution. In the process, the President, the Speaker of the Pyidaungsu Hluttaw, the Speaker of the Pyithu Hluttaw, the Speaker of the Amyotha Hluttaw, the Union Chief Justice and the chairman of the Constitutional Tribunal should have the right to submit the cases directly to the Constitutional Tribunal. And in a case in which Region or State Chief Minister; the Speaker of the Region or State Hluttaw; the chairman of the Leading Body of the Self-Administered Areas and at least 10 percent of members of the Pyithu Hluttaw and the Amyotha Hluttaw submit a case to interpret the Constitution, they should have the right to do so in accord with the procedures rather than submit directly. We agree to these points. We members of the delegate group of national races consider that the proposed detailed basic principles for the Chapter “General Provisions” should be adopted due to the fact that they cover all necessary points. They are:

(a) This Constitution is the basic law of laws of the State.

(b) Myanmar language is the official language.

(c) The State fundamental principles are the guidelines in interpreting the provisions of the State Constitution and of other laws.

(d) Interpretation of the expressions is based on Myanmar text and referred to the existing Interpretation of Expressions Law.

(e) A Myanmar manuscript of this Constitution is kept at the National Archives, and it is conclusive evidence of the provisions of this Constitution.

(f) Permission is granted to the Region government, State government, a cooperative society, an organization or a person to run any of economic enterprises, which are prescribed to be operated solely by the Union Government, through a joint-venture system with the Union Government or under agreements.

(g) Reciprocal obligations arising out of any treaties or agreements which before the coming into force of this Constitution were in force are honoured between the Government of Myanmar and the Government of any other State.

(h) The government may sue and may be sued regarding the charters signed with any of other nations before this Constitution comes into force.

(i) The Constitutional Tribunal is formed with qualified persons, and they are assigned duties. The President, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw shall select three members each totalling nine:

(j) A member of the Constitutional Tribunal shall be deemed to have resigned if he is a member of any Hluttaw or a government employee and they are prohibited to participate in party politics to ensure equality among the members.

(k) The term of a members of the Constitutional Tribunal is fixed. (l) The President is vested with the power to accept the resignation of a member of the Constitutional and to appoint a new member. (m) Responsibilities and rights of the Constitutional are designated.

(n) Persons and bodies that have the right to submit a case directly of in accordance with the designated ways to the Constitutional Tribunal for its stance are designated.

(o) Formation and relations of the Constitutional Tribunal, responsibilities, powers and rights and role of the chairman and members are designated.

Our group support the 26 detailed basic principles the Work Committee chairman presented for the Chapter “General Provisions”, and has no suggestions about them.

Mr Chairman,

The delegate group of national races has already discussed in support of the detailed basic principles from 1 to 4 for the chapter “Amendment of the Constitution”, the detailed basic principles for the chapter “State Flag, State Seal, National Anthem, the Capital”, the detailed basic principles from 1 to 8 for the chapter “Transitory Provisions”, and the detailed basic principles from 1 to 26 for the chapter “General Provisions”, within the framework of the six objectives of the National Convention and 104 detailed basic principles.

We of the delegate group also present four separate suggestions which we assume are proper and good. They are: one separate suggestion for the chapter “Amendment of the Constitution”, and three for the chapter “State Flag, State Seal, National Anthem, the Capital” totalling four to be used as necessary.

Mr Chairman,

The past history has taught us a lot of lessons. It is the duty of all the people of the Union to shape a golden age in the future while taking the past lessons wisely. The on-going National Convention is marking the first milestone on the road to democracy. All the delegates are happy and take pride in themselves for the opportunity to collectively take part in the noble task.

We are working out of hours while assessing the personal experience, taking of the lessons of life, and studying the international military, economic and economic affairs based on both practical and theoretical knowledge. Hence, we are witnessing the sound results. The nation has been able to end the internal armed strife and stay away from ideological armed conflicts, catch up with the ever advancing technological field of the 21st century and build almost all the economic infrastructures. The nation will stand tall among the world nations, proclaim the Constitution, and reach the golden age with the continued efforts of the elected public representatives. All the national races of the constant learning Myanmar society are heartily welcoming the golden future.

With full Union Spirit, the delegate group will continue to take part with collective efforts for the emergence of modern and developed genuine discipline-flourishing democratic state and new Constitution that has the power to serve the interest of the nation and the people and contribute to the flourishing of democracy practices in the nation.