“Desirous for All of Understanding Explicitly” (An article appeared in newspapers dated 9-2-2015)

  • Mon, 9 February 2015

This article is written for a reason and for my thought that it is worthy of knowledge and worth writing about interpretation and definition as construing of law. I remember what one of my teachers expounded. He said, “lawpersons should not state carelessly, but with evidences and references” These words are rooted in my heart till these days. It is the more important to be careful thus in written materials, it is necessary to search for and research evidences and references in connection with the subject for such materials with minimum error might contained writing.

In one country the 1973 law on Interpretation and Definition of Expressions was promulgated in order to explicitly and uniformly construe and define provisions and expressions contained in laws. This law is also referred and applied in defining expressions of the Constitution. One may ask why these are talked about and the answer is, “Erroneous definition or bias interpretation of law is detrimental to the Rule of law, which is a popular topic. Therefore, where a certain law is to be interpreted, the purpose at the time of enacting that law should be digested first and then interpret after meticulous consideration in all aspects. In this regard, Section 3, sub- section (b) of law on Interpretation and Definition of Expressions provides, “Interpretation of any provision of law shall be in accordance with the purpose of the authority enacting such law.”

In our Republic of the Union of Myanmar, enacted criminal laws shall have no retrospective effect of prevalence, meaning that any case prior to enactment of a certain law shall not be taken further action with respect to such enacted law, in retrospection. But there is an exception. Retrospective action may be taken provided such enacted law said so. In relation to it, Section 3, Sub-section (e) of law on Interpretation and Definition of Expressions provides “No law shall have retrospective effect of prevalence. Unless it expressly said so, but no criminal law shall have retrospective effect of prevalence.”

I would like to explain abrogation of an enacted law by promulgation of a new law. In enacting a new law as substitution of an existing law, there usually contain a provision to abrogate the old law. If thus abrogated, no action can be taken under the old law at the time of its abrogation shall continue in accordance with such abrogated law. In connection with this, the constitution in its section 373 provides, “Any person who committed a crime shall be convicted only in accord with the relevant law then in operation Moreover, such person shall not be penalized to a penalty greater than that is applicable under that law. “In this provision, the expression, “shall be convicted only in accord with the relevant law then in operation. “clearly indicates to mean the proceedings under old law which are still in process with respect to cases prior to enactment of new law. The intention is to continue the proceedings and penalize under the old law for cases prior to enactment of new law and which cases were then in process under the old law, but not yet a final judgment made. That is the reason why the expression “shall be convicted” is used. Provisions contained in section 14 of law on Definition of Expressions are more pronounced in classifying intended meaning of this provision.

The said Section 14 provides, “In abrogation of any provision of law by a certain law:

- The effect of provision of law which was abrogated and the proper proceedings under such law before its abrogation shall not be infringed.

- Title, rights, obligations and liabilities under abrogated provision of law before its abrogation shall also not be infringed.

- Penalized penalty and confiscated property under abrogated provision of law before its abrogation shall not be infringed.

- Investigation, suit and applying for prosecution with respect to above mentioned title or rights or obligation or liabilities or penalty or confiscation shall not be infringed. These may be performed in continuation as if the abrogated provision of law were still in force. Moreover, penalization and confiscation may consequently be performed under such law.

Proviso Otherwise stipulation in the abrogating law shall be abide by as the case may be.

“In studying these provisions it can be found that investigation, examination and hearing under the old law or any judgment by court under the same may be performed in continuation in accord with the old law. In this section the old law means “the abrogated law” and the new law means “the abrogating Law”

According to provisions of law that I have mentioned above, I presume that it is quite clear and obvious, where a law is abrogated by a new law which was enacted in substitution or addition, that retrospective action (need with the original old law) is non feasible, but if there contained any provisos in the new law enacted in addition it is to be operated accordingly. In this regard a study of provisos of law of definition of Expressions, Section 3 (e)and Section 14 may clarify. “Anti” money laundering law enacted by Pyidaungsu Hluttaw law No. (11/2014) dated 14th, March 2014 may serve as an example. In that law, Section 67 provides, “Concerning money or property gained by committing any crime applicable by this law as contained in Section 5:

- Offences involving money or property gained by committing any crime contained in Section 3, Sub-section (N), after coming into force of this law shall be prosecuted only under this law.

- Offences involving money or property gained by committing any crime contained in Section 3, Sub-section (N), before coming into force of this law shall be prosecuted under the law of control of Illegally Earned Money and Properties.

Section 71 of said law provides, “Law of Control of Illegally Earned money and properties (State Peace and Development Council Law No. 6/2002) is abrogated by this law. “but a separate provision like that of a proviso being stipulated in Section 67, sub-section (B) signifies that cases prior to new law can be prosecuted under the old abrogated law. Likewise, if such provisions contained in any other new law enacted in substitution, cases prior to coming into force of new law may be prosecuted. For example, if there contained a provision in some section of a law like those contained in Anti-Corruption law and Anti Money Laundering law, Section 67, Sub-section (B), favoring to take action, cases prior to coming in force of such law may be prosecuted under specifically stipulated section of law. But I would like to note that is not so due to lack of said specific stipulation. If this law is not applicable, there remains a chance to argue whether it is feasible to prosecute under other laws. Section 68 of said law expressly provides not withstanding anything contained in any of the existing laws, cases involving corruption or wealth earned by corruption or investigation and prosecution of cases involving money and property shall only be prosecuted under this law.”

I would like to inform that upon finding a committed crime involving corruption under provisions of 1974. Income Tax Law, section 48-1, 1990-commercial law, Section 23, 1992-Forest Law, Section 46, 1993- Narcotic Drugs and Psychotropic substances law, Section 18(A), 1995- Myanmar Police Force Disciplinary law, Section 17 (H); 1997- Fire Brigade Law, Section 37, Criminal Code, Section 162 to 165. which contained provisions with respect to corruption, under said section 68, action must be taken only in accordance with Anti- Corruption Law.

Out of all the laws I have mentioned above: Criminal Code is a general law and the rest are special laws. In a contest between general law and special law, the latter prevails as law on Interpretation and Definition of Expression provides in Section 3 (D), “A provision contained in any special law overrules the respective provision contained in any general law A special provision contained in any law overrules the general provision contained in the same. “Likewise, with respect to non-conformity and conflict of one provision of law and another provision of law, law on interpretation and Definition of Expression, Section 3, Sub-section (G) provides,” In case of non-conformity and conflict of an earlier provision of law and a later provision of law and a later provision of law, the latter shall prevail and be conclusive.”

I am presenting this article with an intention for the public of gain knowledge about laws and to clearly understand the provisions of law, So that the public may be able to interpret the meaning of laws correctly up till this day I dare not admit of myself as a law professional I admit myself as just a learner of law, because in the profession of law, first like any other subjects, what one has to learn or even study are inexhaustible I honestly believe and hope that readers may be able to observe and consider the facts and figures I have presented with references of provisions contained in laws and be able to distinguish between right and wrong

 

            Aung Thitsar (Commission)