What happens when a law needs further presidential notification to come into effect

On 25th March 2020, the President”s Office issued a notification (No. 50/2020) allowing the Insolvency Law to take effect. The law was submitted to the Hluttaw by the Union Supreme Court in January 2019, to substitute earlier acts dating from 1909 and 1920.

The Pyidaungsu Hluttaw approved the bill on 14th February 2020. However, Article 1(b) states that the law will only take effect on the date of a notification issued by the President”s Office. The Article also states that a further, separate notification is required for Part 10 (transnational insolvency). So, in spite of the recent notification, the law is yet to come into force in its entirety.

When does a law come into force?

In order for a bill that has been approved by a national legislature to become a law, there is normally a final stage, known as “assent” or “promulgation”. At this point, the bill becomes a law of the land. It varies in different countries but is usually marked by the signing of the law by the head of state and/or its publication in an official gazette.

In Myanmar, bills are formally signed into law by the President following Hluttaw approval. At this point the law has gained assent, but sometimes, as with the Insolvency Law above, a further step is required before the law can come into force. In these cases, the law contains provisions that either specify a future date when the law will take effect, or states that the law will only come into force when the President issues a notification.

The power to delay the implementation of a piece of legislation is therefore a significant executive power. In this article, we are interested in how this power is used, and whether it is used appropriately and consistently.

Laws that do not immediately come into effect

Most laws come into force when the President grants assent (signs) the bill. However, there were 12 laws during the first term Hluttaw (2010-2015) that prescribed a delay between assent and coming into force. Some prescribe a time-limit when the law must take effect. An example is the Employment and Skill Development Law (2013), which states that the law should take effect three months after being assent.

Table: List of laws that do not immediately come into effect in the first term of Hluttaw.

During the second Hluttaw (2016-2020), 15 laws contained clauses requiring a period of time or Presidential notification before taking effect. What is distinct during this Hluttaw is the way that different provisions in a law have been subject to different dates for coming into effect. Chapter 10 of the Insolvency Law (2020) mentioned above is an example of this. The Consumer Protection Law (2019) contains a similar provision.

Another distinction of the current term is the prescription of an exact date for laws to take effect. For example, in the Tax Management Law (2019), a clause says that the law will have effect on 1st of October 2019, undoubtedly linked to the change to Myanmar”s official financial year.

Table: List of laws that do not immediately come into effect in the second term of Hluttaw.

Eight laws remain that have been assented to by the President but await a Presidential notification to bring them into force. These are four Intellectual Property Right Laws, the Occupational Safety and Health Law, the Myanmar Telecommunication Corporation Law, the Land Acquisition, Resettlement and Rehabilitation Law, and the Safeguards (International Trade) Law.

Why delay?

Many countries delay bringing laws into force following their approval by legislatures and final assent. Reasons for this vary, depending to a significant extent on the specific constitutional arrangements in each country. However, common reasons for delaying legislation coming into force might include:

• The implementation of the law may require some form of secondary legislation, such as by-laws, orders or other instruments, that will take time to prepare. If this is the case, the parent law should make reference to this.
• Departments or other government entities responsible for the administration or enforcement of the law may need time to prepare, for example by making the necessary resources available or training staff.
• Some laws are by their nature linked to specific dates. The “coming into force” date of the tax law mentioned above, which was linked to the change in financial year, is an example of this.
• Some emergency legislation may be linked to specific events and may contain a date on which they come into effect, and an end date when they cease to have effect. Legislation to address the current COVID-19 pandemic may fall into this category.

Considerations

Whilst there are many legitimate reasons for delaying when laws come into force, it is not always clear what these reasons are, and whether they are being applied consistently. Based on the above, the following suggestions could be made:

• When reviewing legislation, MPs should take an interest in bills that specify a delay between Presidential assent and the date the law will come into force. If more time is needed for the implementing Ministry to prepare, what arrangements are being made? Will new funding be required to implement the law? The government should aim to provide clear explanations for delays.
• Laws containing provisions that do not specify a time limit or a date when they will come into force should probably be avoided, as this can create uncertainty. For example, businesses that will need to comply with new regulations may be unsure when, or how, to prepare.
• Often, new laws in Myanmar are light on detail and assign responsibility for drafting detailed policies, rules or regulations to the relevant department or committee. In order to avoid delayed implementation of new laws, the government should seek to develop legislation that contains more of this detail. Putting more of the detail in primary legislation would give MPs an opportunity to scrutinise, debate and improve the law and its effectiveness.

By Moe Aung & Paul Taylor

(This article is updated on 9 April 2020 with explanations on why delay happens, and on 16 June 2020 with some changes in the table and additions to the considerations for Myanmar.)