NLM on Constitutional Tribunal bill

The New Light of Myanmar published its side of the controversy over the Constitutional Tribunal bill. It actually tells a pretty different story and is sympathetic to Khin Aung Myint’s attempt to get the bill passed. Moreover, this article makes it sound like there’ still hope for the bill. Here it is (for those of you who don’t read NLM daily, I warn you that the writing style can be dreadful):

Second regular session of Amyotha Hluttaw continues for 44th day
One proposal submitted, two bills approved, distribution of rules, notifications
reported to Hluttaw, clarifications made on questions, proposal, bills

NAY PYI TAW, 2 Nov- The 44th day session of the Amyotha Hluttaw was held at Amyotha Hluttaw Hall of Hluttaw Building here at 1 pm today, attended by Speaker of Amyotha Hluttaw U Khin Aung Myint and 209 Amyotha Hluttaw representatives.
At today’s session, one proposal was submitted, two bills were approved, distribution of rules and notifications were reported to the Hluttaw, and questions proposals, bills raised and submitted during the second session were clarified.

In the proposal submission session, Daw Khin Waing Kyi of Yangon Region Constituency No. 1 submitted a proposal to support sending bills approved or deemed to be approved by Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union to vet whether the bill is in conformity with the Constitution if doubted before sending it to the President to sign and promulgate it as law, and to object a proposal which has approved to overturn the issue at Pyithu Hluttaw.

Regarding the proposal, Speaker of the Amyotha Hluttaw said that representatives of the Amyotha Hluttaw phoned him for they were deeply unhappy with the decision of Pyithu Hluttaw to approve the important proposal submitted by Secretary of Hluttaw Rights Committee Dr Soe Yin during the 44th day session of the Pyithu Hluttaw. When a proposal was submitted to Amyotha Hluttaw the same day to discuss the proposal approved by the Pyithu Hluttaw, he had to consider whether the proposal related to works of Speaker of the Pyidaungsu Hluttaw should be an important one or not in accordance with the Amyotha Hluttaw Rule 133. A proposal should be considered as an important one when it was a current important issue concerning with the people, he said. The discussion at Pyithu Hluttaw had damaged the integrity of Speaker of the Pyidaungsu Hluttaw, and as it was reported to clarify the issue immediately, the proposal was allowed at Amyotha Hluttaw today as an exception and the proposal would be sought for approval at Amyotha Hluttaw, he said. He seek the approval of Amyotha Hluttaw and the Hluttaw approved the proposal.

He continued to say that he had to seek the approval of the Hluttaw, because he was worry that if he had not sought approval of the Hluttaw, it could be consider that the proposal was agreed at the Hluttaw as it was related to the integrity of the Speaker of the Hluttaw. Though the proposal was agreed to discuss at the Hluttaw, the proposal should be discussed wisely and legally not to damage others when it was considered as incorrect issue during the discussion, he warned.

As the proposal was submitted and discussed immediately at Pyithu Hluttaw and the measures were carried out in the absence of the Speaker of the Pyidaungsu Hluttaw, he did not know the full discussion of the seven Pyithu Hluttaw representatives supporting the proposal, he said. However, he would like to tell what he heard about the discussion made at Pyithu Hluttaw and he carried out his duties as the Speaker in accordance with the law. His explanation meant that as he had to report on what should be known to the Hluttaw honestly and it was absolutely neither a reaction nor organizing others for counter reaction because the Speaker of the Pyidaungsu Hluttaw was also the Speaker of the Amyotha Hluttaw, he said.

Regarding the duty and rights of the Speaker of Pyidaungsu Hluttaw, Rule 8 (d) of Pyidaungsu Hluttaw stated that supervising the procedures of the Hluttaw to be in conformity with the constitution, the Hluttaw law and rules and the Rule 17 (d) of the Pyithu Hluttaw also stated the duty and rights of the Speaker are same as the Speaker of Pyidaungsu Hluttaw, he said. Besides, he pledged to protect and preserve the constitution when he swore as a representative of the Hluttaw and as the Speaker, and therefore, the Speaker had to carry out his duties carefully to scrutinize all procedures of the Hluttaw whether they were accorded with the constitution or not.

He continued to say that he had to decide whether all questions, proposals and bills were accorded with the constitution or not, and when he has doubt, he must seek the interpretation, resolution and opinion of the Constitutional Tribunal. That was the duty of the Speaker to be carried out during the period before a bill was
discussed to completion, he added.

Because, the Article 324 of the Constitution stated that “ the resolution of the Constitutional Tribunal of the Union shall be final and conclusive.” Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw had no rights to decide over Interpretation regarding the constitution, he said. Therefore, he, the Speaker, performed his duty as much as he could and as he carried out his tasks in accordance with the Rule, there was no need to seek approval of the Hluttaw.

It was a procedure to seek resolution of the Constitutional Tribunal when there was doubts if issues were accorded with the constitution or not, and to help the future generation understand the procedure, the Speaker asked the opinion of Pyidaungsu Hluttaw on 28 October and it was understood that the issue was not a proposal.

It could find in the record that there was no word of “proposal” in the speech of the Speaker and the Speaker told that “Joint Bill Committee will be assigned duty to scrutinize the bills before they were sent to the President to sign the bills approved or deemed to be approved by the Pyidaungsu Hluttaw in accord with Section 105, subsection (1) of the State” and the Speaker continued to read the Article 198 (a) of the constitution stating effects of the laws.

The Article 198 (a) states that “if any provision of the law enacted by the Pyidaungsu Hluttaw, the Region Hluttaw, the State Hluttaw, the Leading Bodies of the Self-Administered Division or the Self-Administered Zone, or any existing law is inconsistent with any provision of the Constitution, the Constitution shall prevail”, he said.

The Speaker explained that when the Pyidaungsu Hluttaw sends the bill to the President to sign and promulgate as law after the Pyidaungsu Hluttaw approved to prescribe as law, the President can task Constitutional Tribunal of the Union for vetting which will return with remarks if there is some points deviated from the Constitution. So, the Hluttaw which has to safeguard the Constitution will be disparaged. Although the Hluttaw prescribed the law and the President promulgated it, provisions which are inconsistent with the Constitution will become laws which are not needed to be abided under Section 198 Sub-Section (a) of the Constitution.

When scrutinized by the Joint Bill Committee, it is found that the bills are needed to send to the Constitution Tribunal of the Union for vetting under Section 322 Sub-Section (b) of the Constitution.

The Speaker asked three times whether the Hluttaw agree to send bills approved by the Pyidaungsu Hluttaw or deemed to be approved by the Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union for vetting, if doubted, whether the bills are consistent with the constitution before sending the bills to the President to sign and promulgate it as laws. As the Hluttaw agreed, the Pyidaungsu Hluttaw announced that Pyidaungsu Hluttaw decided to send the bills approved by the Pyidaungsu Hluttaw or deemed to be approved by the Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union for vetting, if doubted, whether the bills are consistent with the constitution before sending the bills to the President to sign and promulgate it as laws.

It is not needed to seek opinion of the Hluttaw for the case. But, the Speaker did to perpetuate it as a procedure. Pyidaungsu Hluttaw Rule 8 Sub-Rule (u) suggests that“if cases beyond these laws happen or if there is a difficulty to carry out in accord with these laws, seeking decision of the Hluttaw to resolve the difficulties” is the duty of the Speaker. Although it could be done by the Speaker alone, it was done that acquiring the opinion of the Hluttaw was assumed to be more appropriate. No person submitting, seconding and discussing the proposal and no voting is needed as it is not the proposal.

The Speaker said that he knew that failing to ask whether there is person who disagrees the case after asking whether there is person who agrees the case drew criticism. There is no provision for asking whether there is person who agrees it three times or asking whether there is person who disagree it. It is adopted as a practice.

When each word or paragraph of the bill is approved in Amyotha Hluttaw, the latter is asked for certainty as it is important. In deciding whether the proposal should be discussed, only the former is asked for three times. There is example that U Ohn Tin was given the chance to discuss as he say no to the question whether there is person who agrees the proposal there times regarding the educational proposal in Amyotha Hluttaw. The fact of losing rights of Hluttaw representatives is concerned with the practice of their own Hluttaw as the Hluttaw representatives can say no when asked whether there is person who agrees it.

Regarding the case, Pyithu Hluttaw send a letter dated 1 November. What the Speaker assumed is that the case should be heard by a Joint Committee/Commission formed by the Pyithu Hluttaw Speaker and outside and respective law experts as it is the case to decide whether the act of the Speaker is right or wrong. It was not expected that the case of Pyidaungsu Hluttaw was submitted as the important proposal, discussed immediately and made decision. So, Amyotha Hluttaw representatives took time to discuss the case as the proposal deciding whether it is appropriate.

Answers of some Pyithu Hluttaw representatives to foreign radio stations were heard. Decision of the Pyithu Hluttaw only is not assumed to be true. That is why the country is practicing bicameral parliamentary system. It is incomplete answer as long as the Pyidaungsu Hluttaw formed with both Hluttaws approved it.

Some say that the system governed by person has been shifted to the system governed by principle. Assumption of duties of the Speaker honestly and abiding laws and rules to extend possible needs to be explained. If there is defamation against the Speaker with incomplete decision, the Speaker can impose punishment.

Though, the Speaker took no action with broad mindset upon ignorance.

If the case is submitted to the Pyidaungsu Hluttaw as the proposal, the Speaker will not allow the proposal as it is the proposal which deters right action of the Speaker. It will be heard by Joint Committee or Committee jointly with respective law experts. The Speaker is ready to obey if the committee concludes that the action of the Speaker is wrong.

As the bill is approved in the Pyidaungsu Hluttaw as it is prescribed, it means prescribing. When the President signs the bill, it means Promulgation. The difference should be known clearly. There is argument that the Constitutional Tribunal can only vet the prescribed laws. The law sent by the Pyidaungsu Hluttaw can be scrutinized by the tribunal before promulgation as law by the President. So, the Pyidaungsu Hluttaw can send the approved bill to the tribunal for vetting. In addition, the Speaker has the right to send the bill to the tribunal if doubted on receipt.

The Section 80 Sub-Section (e) of the Constitution about discussion and decision regarding the undertakings of Pyidaungsu Hluttaw is concerned mostly with the sending of messages of condolences and of felicitations and not concerned with the duties of the Speaker.

The sending of bills which are doubted whether these are consistent with the constitution is not putting the legislation power of the Hluttaw under the tribunal. It is needed to notice the phrase “if doubted”.

The tribunal can only make remarks and decisions regarding the sections that are in violation with the constitution and is not authorized to restrict the formulation of that law.

Law-makers should not think that to seek the remarks of the constitutional tribunal of the state is a dishonorable act.

To err is human and the speaker is no exception. It is actually the act of seeking assistance from the tribunal, assuming responsibility for making no mistakes in the constitution. The explanation is made for none other intentions but because it is learnt that Amyotha Hluttaw representatives are displeased.

Regarding the proposal, Hluttaw representatives U Paul Liang Lwin of Chin State Constituency No. (9), U Zaw Myint Pe of Mandalay Region Constituency No (5), U Hla Swe of Magway Region Constituency No (12), U Khin Maung Yi of Ayeyawady Region Constituency No (6), Dr Tin Shwe of Yangon Region Constituency No (6), U Sai Paung Nap of Shan State Constituency No (12), Dr Myint Kyi of Yangon Region Constituency No (8), Dr Myat Nyana Soe of Yangon Region Constituency No (4), U Zone Hle Htan of Chin State Constituency No (2), U Phone Myint Aung of Yangon Region Constituency No (3), U J Yaw Wu of Kachin State No (12), Dr Aye Maung of Rakhine State Constituency No (1), Dr Banya Aung Moe of Mon State Constituency No (7) and U Win Naung of Yangon Region Constituency No (5) held a discussion that Hluttaw representatives, being the representatives of the people, have to adhere to the provisions of the constitution and stand by the interests of the people. Laws cannot cover all the issues in the real world. There is no provision that Pyithu Hluttaw and Amyotha Hluttaw can reconsider and object what is passed by the Pyidaungsu Hluttaw. It should be viewed that the speaker is using his rights honestly however it should not be considered that the decision of the Pyithu Hluttaw is not in conformity with the law. All are Hluttaw representatives and the two Hluttaws are brother Hluttaws which the same rights.

All representatives should be patient, acting out of reasoning power.

As the nation in the initial stage of democratization and democratic practices, all should collectively find a solution to the case. Both the Hluttaws are working for the nation and the people, and the Pyidaungsu Hluttaw Speaker and the Amyotha Hluttaw Speaker are urged to play a leading role in seeking the reasonable solution in unison.

The case, if handled with understanding and cooperative attitudes, is not a problem but turns out to be a lesson.

The proposal of Daw Khin Waing Kyi is approved by all the representatives.

In bill-passing session, Member of Bill Committee U Myint Tun explained analysis report of the Bill Committee concerning the proposal of U Paul Liang Lwin of Chin State Constituency No (9) to amend the Paragraph 12 (f) of Chapter (4) and the Hluttaw approved the bill paragraph by paragraph.

The Hluttaw approved amendments to Paragraph 2 (k) of Chapter (1), Paragraph 9 (e), (f), Paragraph 10 (i), and Paragraph 12 (f) of Chapter (4), Paragraph 35,
Paragraph 39 (c), Paragraph 40, Paragraph 41, and Paragraph 42 of Chapter (9), Paragraph 55 of Chapter (11), paragraph 63, paragraph 67, Paragraph 68, Paragraph 69, Paragraph 70, Paragraph 71, and Paragraph 72 of Chapter (14).

As no representatives raised objection to the amendment of the Bill Committee concerning Paragraph 12 (f) of Chapter (4) of Region or State Bill, the Hluttaw approved the amendment.

In informing-to-Hluttaw session, it is informed to the Hluttaw that Hluttaw representatives, upon finding that the rules, or a particular regulation or principle are not in conformity with the provisions of the law concerned, can propose to the Hluttaw to revoke or amend those rules, or particular regulation or principle within 90 days starting from the date of issue of those rules, or particular regulation or principle. If not, it is to be assumed that the rules, or regulation or principle are approved.

Amyotha Hluttaw has distributed Constitutional Tribunal Rules to Hluttaw representatives on 19 August, Cultural Heritage Sites Protection Rules on 2 September, Notification No 39/2011 about Land Rights concerned foreign investment law of the Republic of the Union of Myanmar on 18 October, Notification No 40/2011 about Foreign Currency, Rules amending Intoxicant Rules on 25 October, and Union Civil Service Board rules on 27 October.

In clarifications of Hluttaw’s actions session, the Amyotha Hluttaw Speaker explained actions of the Hluttaw in response to questions, proposals, and submitted bills of the Hluttaw representatives.

The Speaker said that Hluttaw representatives raised a total of 283 asterisk questions in the second regular session of the First Amyotha Hluttaw , which were replied by the members of the Union-level institutions. 85 unmarked questions raised by 36 representatives in letter were replied by the ministries concerned and answers have been sent to the representatives.

Amyotha Hluttaw representatives submitted 46 proposals-43 were originally submitted as proposals, and the other three turned from questions to proposals. Amyotha Hluttaw approved 33 out of 46.

After committees concerned have read out the questions and proposals in details, guarantees, promises and responsibilities of the government will be put on record.

Union level institutions delivered eight bills and Amyotha Hluttaw representatives two, totaling 10 to Amyotha Hluttaw for further proceeding. Pyithu Hluttaw delivered seven bills to Amyotha Hluttaw, seeking approval or amendment of those bills from the letter.

The Amyotha Hluttaw Speaker then explained delivery of each bill to the Pyidaungsu Hluttaw and Pyithu Hluttaw and their replies and follow-up works.

Today’s session came to an end at 4.20 pm and the 45th day session will resume when Pyithu Hluttaw sends the bills initially discussed at the Amyotha Hluttaw back to Amyotha Hluttaw.-MNA

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