Constitutional Law Chapter 7(New)
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Transcript of Constitutional Law Chapter 7(New)
1
Contents
State Law and Order Restoration Council and State Peace and
Development Council
Chapter VII Pages
7.1 Constitution of the Republic of the Union of Myanmar
(2008) 3
7.2 Drafting of Constitution 3
7.3 Basic Principles 4
7.4 State Structure 7
7.5 Legislature 9
7.5.1 Pyidaungsu Hluttaw 9
7.5.1.1 Composition 10
7.5.1.2 Powers 11
7.5.1.3 Law Making 12
7.6 Executive 13
7.6.1 The Union Government 13
7.6.1.1 Formation of the Union Government 14
7.6.1.2 Powers and Functions of the President 14
7.6.1.3 The Executive Power of the Union Government 16
7.7 Judiciary 17
7.7.1 Formation of Courts 18
7.7.2 Supreme Court of the Union 18
7.7.2.1 Original Jurisdiction 18
7.7.2.2 Writ Jurisdiction 20
7.7.2.3 Appointment of the Chief Justice of the Union 21
7.7.2.4 Impeachment of the Chief Justice of Judges 22
7.7.2.5 Term of the Chief Justice of the Union and Judges
of the Supreme Court of the Union 22
7.7.3 Formation of High Court of Region and State 23
7.7.3.1 Jurisdiction 23
2
7.7.3.2 Court under Supervision of the High Court of Region or
State 23
7.7.4 Courts- Martial 25
7.7.5 The Constitutional Tribunal of the Union 25
7.7.5.1 Formation 25
7.7.5.2 Functions and Duties 25
7.7.5.3Submission to obtain the interpretation, decision and
opinion 27
Key Terms 29
Assignment Questions 30
Short Questions 31
3
Chapter (7)
State Law and Order Restoration Council and State Peace and
Development Council
’
7.1 Constitution of the Republic of the Union of Myanmar (2008)
2008
7.2 Drafting of Constitution -
Drafting of the detailed basic principles of the Constitution was drafted
by the eight groups of people representatives containing main structures
in the Constitution of 2008.
၏
၌ ါ ။
A Referendum was held a relating to the draft Constitution. The State
Peace and Development Council issued a notification relating to hold a
Referendum on the draft Constitution of 2008. Announcement on the
result of the Referendum held in 47 Townships in Yangon and
Ayeyawady Divisions, by the Commission of Referendum (11/2008).
Announcement on result of the Referendum held in the whole Country,
by the Commission of Referendum (No. 12/2008).Announcement of
Promulgation of State Constitution of the Republic of the Union of
Myanmar by the State Peace and Development Council (No. 7/2008).
၍ ။
၈
၍
။ ၏
ါ ၄၇
4
၁၁/ ၈ ။
၏
၁ / ၈ ။
၏
၇/ ၈
7.3 Basic Principles -
The National Convention Commencing Work Committee formally
approved the 104 basic principles during the National Convention held
in Nyaung Napin, the basic principles are consolidated to 42 basic
principle. Among the 42 basic principles the salient points are as
follows:-
၁ ၄
၄ ါ ။ ၄
ါ ။
The Union’s cons is tent objectives contained of s ix points;
၆ ါ ၊၎ -
(a) non-disintegration of the Union,
၁ ၊
(b) non-disintegration of National Solidarity,
၊
(c) perpetuation of Sovereignty;
၃ ၊
(d) flourishing of a genuine, disciplined multi party democratic
system;
၄ ၍ ါ ၊
5
(e) enhancing the defence services to beable to participat in
the National Political Leadership role of the state.
၅ ၌ ၊
ါ ၊
(f) enabling the defence services to be able to participate in the
National political leadership role of the state. (Art: 6)
(၆) ၏
ါ ။ ၆
The Union Practices genuine disciplined multi-party democratic system.
(Art7)
၍ ါ
။
The Union is constituted by the Union System. (Art 8)
။ ၈
No part of the territory constituted in the Union such as Regions,
States, Union Territories and Self-Administered Areas shall ever secede
from the Union. (Art 10)
ါ ၊ ၊
၊ ၏
ါ ၊ ၁
In various Hluttaw, defense services personal have the right to
participate as prescribed by the Constitution:
၊
ါ ။
The head of the Union and the Head of Executive of the Union is
the President. (Art 16)
။ ၁၆
The Union shall to protect the right of the peasants and to protect
the right of the workers by enacting necessary Laws.
6
၏
။
Civil services personnel shall be free from party politics. (Art26)
(a) ါ ၊ ၆
The Union shall care for mothers and children orphans, fallen
defence services pers onnel’s children, the aged and the disable d;
(Art32) (a)
၊ ၊
၏ ၊ ၊
၊ ၃
The economic system of the Union is market economy system. (Art35)
၏ ။ ၃၅
Every citizen shall have the right to elect and be elected in accord with
the law. (Art38) (a)
။ ၃၈
The Union shall practice disciplined multi-party democratic system in
accordance with Law.
ါ
။
The Union practises independent, active and non-aligned foreign policy.
(Art41)
၍ ါ
။ ၄၁
The Union shall protect and conserve natural environment.
(Art45)
။ ၄၅
If any issue arises out of the Constitution, a Constitutional
Tribunal formed by the Constitution has the power to interpret the
7
Constitution and laws promulgated by the various Hluttaw, Region and
State Hluttaws and the decision of the Constitutional Tribunal is final
and conclusive. (Art46)
ဤ ါ ၊
ဤ
။ ၄၆
7.4 State Structure
State structure of the Constitution of the Republic of the Union of
Myanmar is defined Chapter II of the Constitution.
ါ ။
According to the relevant provisions the Union consists of seven
Regions, seven States and the Union territories as follows:-
ါ ၊
။ ၎ -
(a) Kachin State;
၁
(b) Kayah State;
(c) Kayin State;
၃
(d) Chin State;
၄
(e) Sagaing Region;
၅
(f) Taninthayi Region;
၆
(g) Bago Region;
8
(h) Magway Region;
(၈
(i) Mandalay Region;
၉
(j) Mon State;
၁
(k) Rakhine State;
၁၁
(l) Yangon Region;
၁
(m) Shan State;
၁၃
(n) Ayeyawady Region;
၁၄
(o) Union territories. (Art 49).
၁၅ ၄၉
Nay Pyi Taw, the capital of the Union prescribed as Union territory,
shall be under the direct administration of the President. (Art 50 a)
၏ ၏
။
၅
The Union is constituted as follows: (Art 51)
ါ - ၅၁
(a) villages are organized as village tract;
၊
(b) wards are organized as town or township;
၊
(c) village- tracts and wards or towns are organized as township;
၊
(d) townships are organized as district;
9
ဃ ၊
(e) districts are organized as Region or State;
၊
(f) townships in a self -Administered Zone are organized as Self-
Administered Zone;
( )
၊
(g) townships in a Self-Administered Division are organized as
District and such Districts are organized as Self- Administered
Division;
( )
၊
(a) If there are Self- Administered Zone or Self-Administered
Division in a
Region or a State, those Self-Administered Divisions, Self-
Administered Zones and Districts are organized as Region or State;
(ဇ)
ါ ၊
၊
(i) Regions, States and Union territories are organized as the
Republic.The Constitution of the Republic of the Union of Myanmar
has a bi-cameral legislature according to Article 47 and the following
organs of State power are formed.
( ၊
၊ ၄၇
၏ ါ
။
7.5 Legislature
7.5.1 Pyidaungsu Hluttaw -
10
Pyidaungsu Hluttaw is the highest organ of legislative power.
Pyidaungsu Hluttaw consists of two Hluttaws that are Pyithu Hluttaw
and Amyotha Hluttaw. The Pyithu Hluttaw is formed with hluttaw
representatives elected on the basis of township as well as population
and hluttaw representatives being the defence services personal
nominative by the Commander in Chief of the Defence Services. The
Amyotha Hluttaw is formed with hluttaw representatives elected in
equal members from Regions and States and hluttaw representatives
being the defence services personal nominative by the Commander in
Chief of the Defence Services.
။
၍ ါ ။ ၍ ၊
၍
၊
။
7.5.1.1 Composition -
There are 440 Hluttaw representatives in the Pyithu Hluttaw, 330
members are elected from not more than 330 townships and 110
members are represented to the defence nominated by the Commander-
in- Chief of the Defence Services in accord with the law. (Art 74 and
109)
၄ ၄
ါ ၊ ၍ ၊
၍ ၊ ၃၃ ါ
11
ါ ၍
၍ ၃ ၃
၊
၁၁
။ ၇၄ ၁ ၉
Amyotha Hluttaw consists of 224 Hluttaw representatives, 168
represented Regions or States and Self-Administered Divisions or Self-
Administered Zones, 56 representatives are the defence services
personnel nominated by the Commander- in- Chief of the Defence
Servies, four representatives from each Region or State inclusive of
relevant Union territory.
၄
ါ ၊
ါ
ါ
၁
၁၆၈ ၊
ါ
၅၆
။
7.5.1.2 Powers -
The Pyidaungsu Hluttaw shall have the right to enact law for the
entire or any part of the Union related to matters prescribed in Schedule
One of the Union Legislative List. (Art96)
ဇ ၁
ါ ၍
၊ ၏
။ ၉၆
12
The Region or State Hluttaw shall have the right to enact laws
for the entire or any part of the Region or State related to matters
prescribed in Schedule Two of the the Region or State Hluttaw
Legislative List.(Art 188)
ဇ
ါ ၍
၊
။ ၁၈၈
The term of the Pyithu Hluttaw is five years from the date of its first
session.(Art 119)
၏
၍ ါ ။ - ၁၁၉
The rest of the terms of the Hluttaw such as Amyotha Hluttaw, Regions
or States Hluttaw are the same.
၏ ၊
၏ ။
7.5.1.3 Law Making -
Law Making prescribes as follows:-
ါ ၊ ၎ -
(a) If a Bill initiated in the Pyithu Hluttaw or the Amyotha Hluttaw is
approved by both Hluttaws, it shall be deemed that the Bill is approved
by the Pyidaungsu Hluttaw.
၊ ၊
။
(b) If there is a disagreement between the Pyithu Hluttaw and the
Amyotha Hluttaw concerning a Bill, the Bill shall be discussed and
resolved in the Pyidaungsu Hluttaw. (Art 95)
13
( )
၍
ါ ။ ၉၅
(a) The Region or State level organizations formed under the
Constitution shall have the right to submit the Bills relating to matters
they administered among the matters included in the Schedule Two of
the Region or State Legislative List to the Region or State Hluttaw in
accord with the prescribed procedures.
ဇ
ါ
။
(b) Bills relating to regional plans, annual budgets and taxation of the
Region or State, which are to be submitted exclusively by the Region
or State government, shall be submitted to the Region or the State
Hluttaw in accord with the prescribed procedures.(Art 190 a,b)
၁၉ ၊
၊
။
7.6 Executive -
7.6.1 The Union Government -
Executive Power
(a) The Executive Head of the Union is the President
၊
(b) (i) The executive power of the Union is distributed among the
Union, Regions and States.
14
၁ ၏
။
(ii) Self-Administered power is distributed among Self-Administered
Areas as prescribed by the Constitution. rt a b
၁၉၉ ၊
။
7.6.1.1 Formation of the Union Government
The Union Government shall comprise of the following persons:-
ါ
-
(a) The President;
၊
(b) Vice-Presidents;
( ၊
(c) Ministers of the Union;
( ၊
(d) The Attorney-General of the Union. (Art 200)
ဃ ၊
7.6.1.2 Powers and Functions of the President
၏
The President, with the approval of the Pyidaungsu Hluttaw, may:-
၏ -
designate the Ministries of the Union Government as necessary, and
may make changes and additions to the ministries; designate the
number of the Union Ministers as necessary, and may increase or
decrease the number.(Art 202)
15
။
၊ ။
။ ၊
။
The President may, in accord with law, have: - the power to
confer honorary titles and awards; and the power to revoke conferred
honorary titles and awards.(Art 205)
- ၊
။
၊ ။ ၅
The President, in accord with the law, may appoint and dismiss Heads
of the Bodies of Civil Services (Art 208)
၊ ။ ၈
The President shall have the right to occasionally deliver an address or
send a message to the session of the Pyidaungsu Hluttaw or the
Amyotha Hluttaw, or to the entire country relating the policies and
general situation of the Union. (Art 210)
၏ ါ ၏
၊
၊
ါ ၊ ။ ၁
The President may intimate the Speaker of the Pyidaungsu Hluttaw to
summon an emergency or special session of the Pyidaungsu Hluttaw, if
necessary. (Art 211)
၊
။ ၁၁
The President may declare war or make peace only with the assent of
the Pyidaungsu Hluttaw.(Art 213 c)
16
၏
၊ ။ ၁ ၃ )
The President shall signed laws and promulgated in the official
Gazette. The President shall be exempted from answering act done by
him but the exemption does not deal with the provisions relating to
impeachment.
၌
။
။
၁၄၊ ၁၅
7.6.1.3 The Executive Power of the Union Government
၏
Subject to the provisions of the Constitution, the executive power of the
Union extends to administrative matters over which the Pyidaungsu
Hluttaw has power to make laws.(Art 216)
ါ ၏
။ - ၁၆
The Union Government preserves stability of the Union, community
peace and tranquility and prevalence of law and order. (Art 219)
၊
။ - ၁၉
The Union Government shall promulgate its policies in accord with the
provisions of the Constitution. The necessary projects have to be drawn
in accord with the said policies and shall be implemented with the
approval of the Pyidaungsu Hluttaw. (Art 220)
ါ
17
၏ ါ ။ ါ
၍ ၏
။ -
The Union Government shall draft the Union Budget Bill based on the
annual Union budget, after coordinating with the Financial
Commission, and submit it for approval to the Pyidaungsu Hluttaw in
accordance with the provisions of the Constitution. (Art 221)
၏
၏
၍ ါ
၍ ။ - ၁
The Union Government may, relating the matters which may be enacted
into law by the Pyidaungsu Hluttaw in accord with the provisions of the
Constitution, submit the Bill to the Pyidaungsu Hluttaw. (Art 223).
ါ
၍
။ - ၃
In carrying out functions of the Region Government, the State
Government, and the Leading Bodies of Self-Administered Division
and Self-administered Zone, the Union Government co-operates and co-
ordinates with them to be effective and successful.(Art225)
၊
ါ ။
- ၅
The Union Government, in accordance with law may form civil services
organizations relating to the Union as necessary. In so forming, the
functions and powers shall be prescribed; may appoint the required civil
service personnel. (Art 227)
18
-
။
။
။ - ၇
7.7 Judiciary -
7.7.1 Formation of Courts -
Courts of the Union are formed as follows:- the Supreme Court of the
Union, the High Courts of the Region, the High Courts of the State, the
Courts of the Self-Administered Division, the Courts of the Self-
Administered Zone, the District Courts, the Township Courts and the
other Courts constituted by law; the Courts-Martial; Constitutional
Tribunal of the Union.(Art:293)
၏ ါ -
၊ ၊
၊ ၊
၊ ၊
၊
၊
။ - ၉၃
7.7.2 Supreme Court of the Union
In the Union, there shall be a Supreme Court of the Union without
affecting the powers of the Constitutional Tribunal and the Court-
Martial, the Supreme of the Union is the highest Court of the
Union.(Art: 294).
။
၏
၏
။ - ၉၄
19
7.7.2.1 Original Jurisdiction -
(a) Only the Supreme Court of the Union has the following original
jurisdiction:-
၌ ါ
-
(i) in matters arising out of bilateral treaties concluded by the
Union;
(၁)
၍ ါ ၊
(ii) in other disputes, except the constitutional problems, between the
Union. Government and the Region or State Governments;
(
၊
(iii) in other disputes, except the constitutional problems, among the
Regions, among the States, between the Region and State and between
the Union Territory and the Region or the State;
၃ ၊ ၊
၊
၊
(iv) other matters as prescribed by any law;
၄
(b) As the Supreme Court of the Union is the highest court of the
Union, it is the court of final appeal;
၏
၊
(c)The judgments of the Supreme Court of the Union are final and
conclusive and have no right of appeal;
၏
၍ ၊
20
(d) The Supreme Court of the Union subject to any provisions of
the Constitution or any provisions of other law has the appellate
jurisdiction to decide judgments passed by the High Courts of the
Region or the State. Moreover, the Supreme Court of the Union also has
the appellate jurisdiction to decide passed by judgments of the other
courts in accord with the law;
ဃ ါ
၊ ါ
၏
။
။
(e) The Supreme Court of the Union has the revisional jurisdiction in
accordance with the law. (Art: 295).
(c)
။
7.7.2.2 Writ Jurisdiction -
The Supreme Court of the Union has the power to issue the following
writs:-
ါ
-
(i) Writ of Habeas Corpus;
၁ ၊
(ii) Writ of Mandamus;
၊
(iii) Writ of Prohibition;
၃ ၊
(iv) Writ of Quo Warranto;
၄ ၊
(v) Writ of Certiorari.
21
၅ ၊
The applications to issue writs shall be suspended in the areas
where the state of emergency is declared. (Art 296)
ါ
။
7.7.2.3 Appointment of the Chief Justice of the Union
(a)The Head of the Supreme Court of the Union shall be called the
Chief Justice of the Union.
၏
၊
(b) Judges of the Supreme Court of the Union including the Chief
Justice of the Union may be appointed in the Supreme Court from a
minimum of seven and a maximum of eleven in number.
ါ
၁၁ ၊
(c) (i) The President shall submit the nomination of the suitable to be
appointed as the Chief Justice of the Union to the Pyidaungsu Hluttaw
and seek its approval.
( ၁
၏
၊
(ii) The Pyidaungsu Hluttaw shall have no right to refuse person
nominated by the President for the appointment of Chief Justice of the
Union and Judges of the Supreme Court of the Union unless it can
clearly be proved that the persons do not meet the qualifications for the
post prescribed in Article 301.
22
၃ ၁
၏
ါ
၊ - ၉၉
7.7.2.4 Impeachment of the Chief Justice of Judges
The President or the representatives of the Pyithu Hluttaw or
Amyotha Hluttaw may impeach the Chief Justice of Union or any Judge
of the Supreme Court of Union on account of high treason, breach of
any provisions of the Constitution misconduct, disqualification, and
inefficient discharge of duty assigned by law.
ါ
- ၏ ဇ ၊
ါ ၊
၊ ၃ ၁
၏ ၊
။ - ၃
7.7.2.5 Term of the Chief Justice of the Union and Judges of the
Supreme Court of the Union
၏
The Chief Justice and Judges of the Supreme Court of the Union
shall hold office up to the age of 70 years unless resignation or his own
volition, being remove from office by impeachment, this ability cause
by either physical or mental defect, death.
23
၊
ါ ၍ ၊
၏ ါ ါ ါ
၊ ါ
၇ ။ ။ - ၃ ၃
7.7.3 Formation of High Court of Region and State
There is the High Court of the Region in the Region and the High Court
of the State in the State. (Art: 305)
၊
။
7.7.3.1 Jurisdiction -
High Courts of the Region or the State shall have the following
jurisdictions in accord with the law:-
ါ
-
adjudicating on original case;
၊
adjudicating on appeal case;
၊
adjudicating on revision case;
၊
adjudicating on matters prescribed by any law. (Art 306)
။ - ၃ ၆
7.7.3.2 Court under Supervision of the High Court of Region or State
24
၏
၊
The following levels of Courts are under the supervision of the High
Court of the Region or State: -
၏ ါ
-
If there is no Self-Administered Areas in the Region or State:-
-
၁ District Courts;
၊
(ii) Township Courts.
။
If there is Self-Administered Areas in the Region or the State:-
-
(i) In the Self-Administered Division:-
၁ ၌
(aa) Court of the Self-Administered Division;
၊
(bb) Township Courts.
။
(ii) In the Self-Administered Zone:-
၌
(aa) Court of the Self-Administered Zone;
၊
(bb) Township Courts.
။
(iii) In the remaining areas:-
၃ ၌
(aa) District Courts;
၊
(bb) Township Courts.
25
။
(c) In the Union Territory:-
၌
(i) District Courts;
၁ ၊
(ii) Township Courts.
။
(d) Other Courts constituted by law.( Art: 314)
ဃ ။ ၃၁၄
7.7.4 Courts- Martial -
According to Sub-Section (b) of Article 293, the Courts-Martial shall be
constituted in accord with the Constitution and the other law and shall
adjudicate Defence Services Personnel. (Art: 319)
၉၃
၍ ။
7.7.5 The Constitutional Tribunal of the Union
7.7.5.1 Formation -
The Constitutional Tribunal of the Union shall be formed with nine
members including the Chairperson. (Art: 320)
ါ
။
7.7.5.2 Functions and Duties -
The functions and the duties of the Constitutional Tribunal of the
Union are as follows:-
၏ ါ
-
(a) interpreting the provisions under the Constitution;
26
ါ
၊
(b) vetting whether the laws promulgated by the Pyidaungsu Hluttaw,
the Region Hluttaw, the State Hluttaw or the Self-Administered
Division Leading Body and the Self-Administered Zone Leading Body
are in conformity with the Constitution or not;
၊ ၊
-
၊
(c) vetting whether the measures of the executive authorities of the
Union, the Regions, the States, and the Self-Administered Areas are in
conformity with the Constitution or not;
၊ ၊
၏ ၏
- ၊
(d) deciding on Constitutional disputes between the Union and a
Region, between the Union and a State, between a Region and a State,
among the Regions, among the States, between a Region or a State and
a Self-Administered Area and among the Self-administered Areas;
ဃ ၊ ၊
၊ ၊ ၊
၊
၊
(e) deciding on disputes arising out of the rights and duties of the Union
and a Region, a State or a Self-Administered Area in implementing the
Union Law by a Region, State or Self-Administered Area;
၊
27
၊ ၏
၍ ါ ၊
(f) vetting and deciding matters informed by the President of the State
regarding the Union Territory;
၍
၊
(g) functions and duties conferred by the laws enacted by the
Pyidaungsu Hluttaw. (Art: 322)
။ ၃
The resolution of the State Constitutional Tribunal of the Union shall be
final and conclusive. (Art: 324)
၏
။
7.7.5.3 Submission to obtain the interpretation, decision and
opinion –
၏ ၊
The following persons and organizations shall have the right to submit
matters directly to obtain the interpretation, resolution and opinion of
the Constitutional Tribunal of the Union:-
၏ ၊ ၊
ါ
-
(a) the President;
၊
(b) the Speaker of the Pyidaungsu Hluttaw;
၊
28
(c) the Speaker of the Pyithu Hluttaw;
၊
(d) the Speaker of the Amyotha Hluttaw;
ဃ ၊
(e) the Chief Justice of the Union;
၊
(f) the Chairperson of the Union Election Commission. (Art: 325)
။ - ၃ ၅
The term of the Constitutional Tribunal of the Union is the same as that
of the Pyidaungsu Hluttaw being five years. However, the ongoing
Constitutional Tribunal of the Union, on expiry of the term, shall
continue its functions till the President form a new Tribunal under the
Constitution. (Art: 335)
၏
၏ ါ ။
၏
။
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Key Terms
ons titution -
as ic rinciples -
ulti-party de ocratic s ys te - ါ
Referendum -
nnounce ent -
a tional onvention -
Discipline -
Union System -
e gions -
tate s -
Union Territories -
Self-Administered Areas -
the aged and the disabled - ၊
elf- d inistered ivisions -
Self-Administered Zones and Districts -
yidaungs u luttaw -
tate luttaw -
Composition -
Law Making -
Courts- Martial
Original Jurisdiction -
rit uris diction -
uris diction -
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Assignment Questions
1. State briefly the Basic Principles of the Constitution of the
Republic of the Union of Myanmar 2008.
2. State briefly the State Structure of the Constitution of the
Republic of the Union of Myanmar 2008.
3. State briefly the Executive of the Constitution of the Republic of
the Union of Myanmar 2008.
4. Explain the role of Pyidaungsu Hluttaw under the Constitution of
the Republic of the Union of Myanmar 2008.
5. Explain briefly the role of Judiciary under the Constitution of the
Republic of the Union of Myanmar 2008.
6. Discuss the important role of the Constitutional Tribunal of the
Union under the Constitution of the Republic of the Union of Myanmar
2008.
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Short Questions
1. Briefly explain the State structure of 2008 Constitution.
2. State the composition of Pyidaungsu Hluttaw under 2008
Constitution.
3. State the composition of Pyithu Hluttaw under 2008 Constitution.
4. State the composition of Amyotha Hluttaw under 2008
Constitution.
5. Explain the role of Executive Power under 2008 Constitution.
6. Describe the formation of the Union Government under 2008
Constitution.
7. Write short note on the Jurisdiction of the Supreme Court under
2008 Constitution.
8. Write about the Jurisdiction of the High Court of the Region or
the High Court of the State2008 Constitution.
9. Who may be submitting to Constitutional Tribunal to obtain for
opinion and resolution?