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December 12, 2019

Commission, Pyidaungsu Hluttaw and Constitution

Thet NyoThet Nyo

There was a case of complaint stating that organizing a commission by Pyihtaungsu Hluttaw  is contrary to the Constitution was submitted to Constitutional Tribunal.
Is there any right to form a commissionAccording to the news, it is learnt that submission of the complaint was made by 50 Pyithu Hluttaw representatives of Tatmadaw including Brig-Gen Maung Maung. They contended that the Constitution has not endowed the authority to Pyihtaungsu Hluttaw to form a commission.  Therefore, it is contrary to the Constitution if the amendment to the law regarding Pyihtaungsu Hluttaw is promulgated without any authority endowment by Constitution.Whatever it is construed that it can be done as there is no explicit provision for ban or the authority is given indirectly, it cannot be done, said the submitters. The fact that the authority to execute something  is not prescribed in a law, can be construed clearly as a ban to execute it. The case can be viewed as amending the Constitution.
It is amending the State Constitution Regarding this case, the approved and accepted Legal Maxim says “expressio unius est exclusion alterius” that can be interpreted as “the fact Pyidaungsu Hluttaw has authority to form Hluttaw  Commission is not expressed in the Constitution and it is clear and explicit,” so it should not be construed beyond that point. Changing, adding and amending the prescribed laws are tantamount to changing the Constitution as long as they are not mentioned in the Constitution, pleaded the submitters.  Is it in conformity with the ConstitutionTheir submission is not meant for the execution of Hluttaw regarding the forming of commission at Pyidaungsu Hluttaw. There is no right to make such a submission. However, their submission is meant for the securing the remark from State Constitutional Tribunal on whether the law promulgated by Pyidungsu Hluttaw is in accord or not in accord with the Constitution, expounded the military representatives.
In conformity with the lawU Aung Kyi Nyunt on behalf of the Pyihtaungsu Hluttaw respond with the following facts:- In amending the Pyidaungsu Hluttaw Law, the original law Article-2 (f) has not been amended.- According to the statement in Article 2 (f) the Pyidaungsu Hluttaw has the right to form commissions and organizations apart from the committees.- Amending the Pyidaungsu Hluttaw Law by the Law 2/2014 adding  Articles 7 (b) and 7(c) that allow forming committee, commission and organization, is not contrary to the Constitution.- According to the Constitutional Law Article118, the Pyithu Hluttaw and according to the Article 150, Amyothar Hluttaw are endowed with the authority to form the necessary commissions and the organizations. Hence the Pyidaungsu Hluttaw  that emerges from the combination of Pyithu Hluttaw and Amyothar Hluttaw  has been automatically provided the authority to form commissions and organizations without mentioning again specifically in the Constitution.- Since the time before the promulgation of Law 2/2014 amending the Pyidaungsu Hluttaw Law Article 2(f), Investigation Commission to carry out the works to eliminate the grievances suffered by people from land confiscation has already been formed.- The proposals of law professional Bhawani Lai regarding the important facts in interpreting the Constitutional Law was presented on page 9 of the book “Interpretation of Statutes”(1964-printing) as “ The Constitution must be interpreted in a broad and liberal manner giving effect to all its parts and the presumption should be that no conflict or repugnancy was intended by its framers.” – For the remaining cases that are not clearly mentioned in Table 1, 2 and 3 of the Constitution the legislative power is endowed to Pyidaungsu Hluttaw by Constitution Law Article- 98, hence the Pyidaungsu Hluttaw is deemed to be the highest institution in having legislative power. Therefore, the assessment that only Pyithu Hluttaw and Amyothar Hluttaw have the legislative power and Pyihtaungsu Hluttaw has no such power is a complete misinterpretation, pleaded the defender U Aung Kyi Nyunt referring to the 3 or 4 Precedents.The argument pleaded by Attorney General’s office only from legal point of view without any concern to both submitter and defender is also remarkable.In this regard, here is the argument of the agent representing the Office of the Union Attorney General. The argument is as follows:- Law on  Pyidaungsu Hluttaw has been enacted as the State Peace and Development Council Law 11/2010.- In article 2/ (F), Union Organization means any committee or commission formed by Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw, it was defined. Accordingly, it must be supposed that Pyidaungsu Hluttaw has the power to form committees and commissions likewise Pyithu Hluttaw and Amyotha Hluttaw. In other words. The prescription that Pyidaungsu Hluttaw has been eligible to form a commission had been prescribed since the time of promulgation of Law on Pyidaungsu Hluttaw by SPDC. According to the definition included in the Law on Pyidaungsu Hluttaw article 2 [F] under article 443 of the Constitution, Pyidaungsu Hluttaw must be presumed to be eligible to form a commission. That being so, the prescription on formation of a commission by Pyidaungsu Hluttaw in the article 7 [b] [c] and [d] of the Amendment Law on Pyidaungsu Hluttaw must be presumed to have been promulgated for convenience and smoothness in performing the tasks of Hluttaws. Hence, it must be concluded that the promulgation of the said prescription is not against the Constitution.

 

Need to broadly construe the essence of the Constitution
In construing the essence of the Constitution, it needs to do broadly it, absolutely not in a narrow scope.
And, it is necessary to broadly construe so that powers and authorities entrusted can cover the scope as far as it reaches, that is to say, to construe its essence for people’s sake as much as possible.
Law on Pyidaungsu Hluttaw and the prescriptions in the Amendment Law on Pyidaungsu Hluttaw were not enacted through indirect misinterpretation into entrusted power, by including those which were not definitely prescribed in the Constitution. Instead, conclusions were presented that it was found to have been prescribed by interpreting the meaning of the power entrusted in the Constitution as far as it reaches, with a view to implementing Hluttaw tasks with convenience and smoothness.
Making decision that the Amendment of the Law on Pyidaungsu Hluttaw is not against the prescriptions of the Constitution
It has been found that the State Constitution Tribunal made a decision that the included promulgation of formation of a commission in Pyidaungsu Hluttaw in the Amendment Law on Pyidaungsu Hluttaw Law [Law on Pyidaungsu Hluttaw 2, 2014] and inclusion of the wording “commission” in other related articles are not against the prescription included in the Constitution of the Republic of the Union of Myanmar, according to the arguments and conclusion in accord with the articles 453, 441, 443, 77, 322[B], 293[C] and 98.

Rejection Decree

The submission made by 50 military Hluttaw representatives including Brigadier General Maung Maung was found to have been rejected by the Constitution Tribunal chaired by U Myo Nyunt with U Nyi Nyi, U Myint Win, U Myo Myint, U Khin Maung Cho, Daw Khin Htay Kywe, U Twal Cin Pau, Daw Hla Myo Nwe and U Kyaw San as members on September 21.
To amend the Constitution
Since the rule of the former government, the Constitution was found to have included matters causing misunderstanding to each other and many matters to be negotiated. At that time, there had been cases of getting decisions from the Constitution Tribunal. Since the time when Tatmadaw government took office, 2008 Constitution itself had weakness to be amended, it was found.
One of the most fundamental weak points was found to be too strict to be amended. Even if it would be amended with the consents of the whole people, there may be some difficulties to do so.
Holding a concept that having already made the Constitution is sufficient for the country is tantamount to negligence of the future. It needs to be the Constitution that will reflect people’s desires.
It is assumed to be an issue of great importance, which still needs to find out a solution after considering in every way.
(The Constitution Tribunal also is a Court of Justice. Likewise judicial courts, it hears cases to the full, makes trials in accordance with the laws and make decisions in just and fair ways. It has been found to have been released at length in Myanmar Gazette that decisions made by the Tribunal can undergo any criteria tests for its justice. The present article was designed for the people to be well convinced with transparency.)

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