Bingham Centre Myanmar Project: Executive Power in Myanmar Bingham Centre for the Rule of Law November 2014 www.binghamcentre.biicl.org 1 2 Professor Sir Jeffrey Jowell KCMG QC INTRODUCTION 1. Democratic constitutionalism requires that the powers of the executive be exercised in accordance with the principle of the separation of powers within the state, and the rule of law. The principle of the separation of powers ensures a division between law-making and law-application. The principle of the rule of law requires that all persons within the state, including the three branches of government, act in accordance with the law.1 As such, it is critically important that the judiciary remains independent from the other branches of government in order to ensure that these legal limits are respected. 2. Of the three organs of state power, the legislature is responsible for making, amending and repealing the law. In addition, it is usually charged with overseeing government policy and holding the executive accountable. The judiciary, on the other hand, is tasked with interpreting and applying the law. It should be composed of independent judges. 3. The executive branch is responsible for the planning and promotion of government policy. It is also charged with the execution and enforcement of laws as enacted by the legislature and interpreted by the judiciary. In addition, it plays a role in proposing new legislation and, in most constitutions, in supervising state bodies such as the civil service and the military. The executive will in most cases be composed of government ministers and led by a president or prime minister. 4. The head of the executive may have further specific powers including the power to appoint members of the executive and the power to refuse or delay legislation, enter into international treaties and the power to make war or declare peace. The duties of the executive will usually include managing the day-to-day running of the key departments of government, including control of policy areas such as energy, transport, security and defence. However, the key principle of the rule of law requires that the powers of the executive should not be exercised arbitrarily. In practice, this requires a high degree of transparency in relation to executive decision-making, thus allowing the other branches of government, as well as the general public, to scrutinise the political leadership.2 1 As Tom Bingham points out in his work The Rule of Law, the concept of the rule of law also contains other elements, such as that laws be accessible and certain; that they be applied equally to all persons; and that there be access to justice through a fair trial and independent judiciary. The principle of the rule of law is recognized and applied by a large majority of states around the world, and is embedded in the Charter of the United Nations and the Universal Declaration on Human Rights. 2 Most countries commit the courts to be the ultimate interpreters of the scope of both legislative and executive power. 3 THE MYANMAR CONSTITUTION RELATING TO THE EXECUTIVE 5. The Myanmar Constitution (the “2008 Constitution”) enshrines the principle of the separation of powers, and establishes the Executive of the Union (the “Executive”) as one of the three branches of government responsible for wielding the state’s sovereign power (Article 11). The Executive comprises a number of governmental bodies, including the Union Government, the National Defence and Security Council, and the Financial Commission [Note: this is based on the fact that these bodies are included in Chapter 5 of the Constitution, which deals with the Executive]. The President is the head of the Executive (Article 16). 6. The executive power of the Union is distributed among the Union, Regions and States, and to some extent, among Self-Administered Areas (Article 199(a),(b)). At the same time, the 2008 Constitution does not provide for the establishment of local self-government below the Region and State level, neither in rural nor urban areas. Districts and townships remain, according to the 2008 Constitution, administrative levels of government managed by civil servants. A. Composition and formation of the Union Government 7. The Union Government is composed of the President, two Vice-Presidents, the Ministers of the Union, and the Attorney General of the Union (Article 200). The President is the head of the Union (Article 199). The President is elected by the Presidential Electoral College, following the procedure set out in Article 60. The Presidential Electoral College is made up of three separate groups: two groups of elected representatives from the Pyidaungsu Hluttaw, and a third group drawn from Hluttaw representatives of the Defence Services, as nominated by the Commander-in-Chief (Article 60(b)). Three Vice-Presidents are then chosen by each of these groups, respectively. The Vice-Presidents are scrutinised by the Pyidaungsu Hluttaw (Article 60(d)) according to the criteria set out in Article 59, before the Presidential Electoral College decides which is to become President (Article 60(e)). The remaining two candidates retain their positions as Vice-Presidents during the President’s term of office. 8. Under the Presidential qualification criteria established by Article 59, the President must be a citizen of the Union of Myanmar (59(b)), of a minimum age of 45 years (59(c)), and well acquainted with the affairs of the Union including the military (59(d)). Moreover, the President must have resided in the Union for at least 20 years prior to his or her election (59(e)), and must not have a spouse who is a citizen or subject of a foreign country. This citizenship requirement extends to the President’s parents, and to his or her legitimate children and their spouses (Article 59(f)). The President may be removed from office under the terms of Article 71, for a number of reasons, including high treason, misconduct and breach of the provisions of the Constitution. However, a complex impeachment mechanism must be observed. Notably, the charge against the President must be signed by at least a quarter of the Hluttaw that presents it, and supported by two thirds of the same Hluttaw. [Note: 25% is equal to the proportion of seats reserved for the military] The charge is then investigated by the other Hluttaw, which may ultimately pass an impeachment resolution if this is agreed upon by at least two thirds of the members (Article 71(f)). 9. The President, with the approval of the Pyidaungsu Hluttaw, may (i) designate the Ministries of the Union Government as necessary, and may make changes and additions to the Ministries, and (ii) designate the number of Union Ministers as necessary, and may increase or decrease that number (Article 202). Importantly, the President is responsible for the appointment of Ministers in accordance with Article 232. Candidates for the position of 4 Minister of the Union must satisfy the qualification criteria set out in Article 232(a). In relation to the Ministers for the Ministries of Defence, Home Affairs and Border Affairs, the President must choose from a list of candidates submitted to him by the Commander-in-Chief (Article 232(b)(ii)). The President must then submit the list of selected persons, along with the list of Defence Services personnel nominated by the Commander-in-Chief, to the Pyidaungsu Hluttaw for approval (Article 232(c)). Such approval may not be refused unless it can be proved that the person in question does not meet the relevant qualification criteria (Article 232(d)). Similarly, the President is responsible for appointing the Attorney General, with the approval of the Pyidaungsu Hluttaw (Article 237). B. Powers of the President 10. Under Article 217, the executive power of the Union is vested in the President. This implies that all executive actions of the Union Government shall be taken as action in the name of, and are ultimately attributable to, the President. In this regard, the President is not accountable to the legislature for the use of his powers (Article 215). Aside from the appointment of Ministers, as discussed above, the President has a range of other powers under the 2008 Constitution. These powers include the ability to grant pardons or amnesties, with the recommendation of the NDSC (Article 204), start or end relationships with other states (Article 206), make a speech to the Pyidaungsu Hluttaw, Amyotha Hluttaw, or the whole country (Article 210), call an emergency session of the legislature (Article 211), put into effect an urgent law when the legislature is not assembled (Article 212), take military action in the case of aggression against the Union in agreement with the NSDC (Article 213), and decide on non-constitutional disagreements at the state, region and self-administered zone level with the help of the government (Article 226). 11. Importantly, the President also has the power to declare a state of emergency in accordance with the provisions contained in Chapter XI of the 2008 Constitution. Chapter XI sets out three types of emergency procedure, each triggered by a separate provision. The first type of emergency arises where the President deems that it is impossible to carry out the executive functions in any part of the country in accordance with the Constitution (Article 410). In this situation, the executive powers of the area in question transfer to the President (Article 411(a)). In addition, the President is granted legislative powers in that area (Article 411(b)). 12. The President also controls the appointment of the members of the Union Election Commission (Article 398), which is the body responsible for holding and supervising elections to the Hluttaw (Article 399). In addition, the President has the power to appoint and remove the Chief Ministers of the Regions and States (Articles 261(a),(b) and 263(a)).