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Contents Constitution of the Union of Myanmar 1947 Chapter III 3. Constitution of the Union of Myanmar 1947 3.1 Aung SanAttlee Agreement 3.2 The Nature & Sources of the Constitution 3.3The Evolution of Federal Structure 3.3.1 The Drafting of the Federal Provisions 3.3.2 Some Practical Difficulties 3.3.3 The Federal Pattern 3.4 The Federal Provisions under the Constitution 3.4.1 The States and Their Territories 3.4.2 The State Councils 3.4.3 The State Governments 3.4.4 State Secession 3.5 The President 3.5.1 Status 3.5.2 Qualifications 3.5.3 Method of Appointment 3.5.4 Tenure 3.5.5 Removal 3.5.6 Vacancy 3.5.7 Powers and Function 3.6 The Union Government 3.6.1 Composition 3.6.2 Appointment 3.6.3 Removal or Resignation

3.6.4 The Special Position of the Prime Minister 3.6.5 3.7 Collective Responsibility The President and Parliament

3.7.1 Bicameralism and the Composition 3.7.2 Composition 3.7.3 Election and Qualification of Members of Parliament 3.7.4 Speakers 3.7.5 Parliamentary Privilege 3.7.6 Sessions 3.7.7 Law making 3.7.8 Money Bills 3.7.9 Other Functions 3.8 The Union Judiciary 3.8.1 The Judiciary under British Rule 3.8.2 The drafting of provisions relating to the Judiciary 3.8.3 General Features of the Union Judiciary 3.8.4 Judges 3.8.5 The Supreme Court 3.8.6 The High Court 3.9 Other Important Provisions in the Constitution 3.9.1 Citizenship 3.9.2 Fundamental Rights 3.9.3 Directive Principles 3.10 Constitutional Amendment Key Terms Assignment Questoins Short Questions

CHAPTER III 3. 3.1 Constitution of the Union of Myanmar 1947 Aung SanAttlee Agreement

Panglong Conference and the Drafting of the Constitution The Constitution of the Union of Myanmar owes its inception to what is popularly known as the Aung San Attlee Agreement signed in London in January, 1947. The agreement was the result of talks between Mr. Attlee and his Labour Government, and U Aung San and his delegation who had been invited to London to discuss the future of Myanmar .
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The

agreement

virtually

guaranteed

the

Independence

of

Myanmar the option either to leave or stay within the Commonwealth. It was also agreed that elections to Constituent Assembly which was to draft the Constitution was to be held in April 1947.

This agreement was published in London in 1947 as a Command Paper by His Majestys Stationary Office. London under the caption Conclusion reached in the conversations between his Majestys Government and the Delegation from the Executive Council of the Governor of Burma (Myanmar) For a re-print of it see Dr. Maung Maung Burma in the Family of Nation. Appendix VIII. Djambaram Amesterdam.

In the Agreement, the British Government favored on principle to the early unification of the Frontier Areas and Ministerial Myanmar with the free consent of the inhabitants of those areas. It also provided for the formation of a Frontier Area Committee of Enquiry consisting of equal members from Ministerial Myanmar and from the Frontier Areas .
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In February 1947 U Aung San and the AFPFL (Anti -Fasist Peoples Freedom League)
3

Leaders, attended the Panglong


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Conference which was held in the Shan States to ascertain the wishes to the people of the Frontier Areas . Also present at the conference were the Saophas of the Shan States, the leaders of the Chins and the Kachins and representatives of the Supreme Council of the united Hill Peoples (SCOUHP). Fortunately agreement was reached on the 12
th

February and the Chins,

Kachins and the Shans decided to throw in their lot in the


2 3

See paragraph 8 of the above Conclusions. The AFPFL was then the Party in Power Most of the leaders were in the Executive Council of the Govermor. U Aung San was then the presicent of the league. 4 Accompanying U Aung San was also Mr. A.G. Bottomley. British Under Secretary of State from Domination Affairs .See Cady. History of Modern Burma P 543. Comell University Press

formation of a Unified Myanmar . Three Karenni leaders were also present at the Panglong Conference as observers, but did not participate in it as the Karennis at that time head on yet decided to join a federated Myanmar. The Panglong Agreement laid the foundation for the Union of Myanmar, and the Frontier Areas Committee which was soon afterwards set up in accordance with the Aung San-Attlee Agreement
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and

which

conducted

investigations on the spot, could report favorably on the formation of a Federal Union in April 1947 .

Also, in April, country wide election for the Constituent Assembly where held and the majority of seats were won by the AFPFL.
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The text of the Panglong Agreement is reproduced in the Report of the Frontier Area Committee of Enquiry. 1947 Part 1. Government Printing Press. Yangon. It is also printed as Appendix III in Dr. Maung Maungs Burmas Constitution. The Committee consisted of 9 persons; 4 from Ministerial Burma (Myanmar). 4 from the Frontier areas. and on Chairman. The Chirman was an Englishman sent from England. Lt. Col: Rees Williams.

In May, 1947, the AFPFL held a Convention at the Jubilee Hall in Yangon where a 111 Member Committee was appointed to draw up the first draft of the Constitution. The Committee worked night and day and on May 23 adopted.
7 rd

.1947, the draft was produced and

In the meantime, U Chan Htoon, an able lawyer, had been appointed Constitutional Adviser . In April 1947, U Chan Htoon went to India to consult Sir B. N. Rau, Indias constitutional adviser. According to Sir Benegal Rau back with him to Yangon in May. referred to above.
10 9 8

the first draft of the

Constitution was then prepared in India and U Chan Htoon took it This draft is apparently different from the draft prepared by the AFPFL Convention

7 8 9

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For a re-print of this draft see Appendix IV of Dr. Maung Maungs Burmas Constitution. After Independence in 1948. U Chan Htoon was appointed as Attorney General and served See Indias Constitution in the making Posthumous collection of notes by Sir B.N. Rau. where a re-print of an Article by Sir b.N. Rau on Burmas Constitution is included. pp 443-461 This draft was probably incorporated into what has been popularly called the Pink Book (as it head pink covers). which was prepared by U Chan Htoon . See Dr Maung Maungs Burmas Constitution.

The Constituent Assembly met in June 1947 and a Constitution Committee of about 75 members was appointed. The Committee was again broken up into Sub-committees for special subjections, by the end of July 1947. The Constituent Assembly at its second session began to consider the draft Constitution clause by clause. The draft which was accepted by the Constituent Assembly was then handed over to the Drafting committee. The Drafting Committee then went through it and had a final draft ready from the third session of the Constituent Assembly which began on 15 September. On the 24
th th

September, 1947, the Constituent

Assembly adopted the Constitution with the provision that it would come into operation on such date as the provisional President might announce by proclamation. On December 10 Independence Act, recognizing Burma (Myanmar)
th th

1947, the parliament of the United Kingdom passed the Burma as an independent country with effect from January 4 Constitution. 1948. Thus, this

date was proclaimed as the date of the commencement of the

It should however be noted that although the Constitution was adopted by the Constituent Assembly on 24 the 4 3
rd th th

September 1947.

Some amendments were apparently made between that date and January 1948. Thus, section 140 was amended on January 1948, on the even of Independence and the consultation

clauses in respect of the appointment of the Chief Justice of the Union and the other Judges of the Supreme Court and the High Court were deleted .
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3.2
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The Nature & Sources of the Constitution


See Dr. Maung Maung Burmas Constitution. P. 149. Orginally, the Chief Justice of the Union was to be appointed by the President in consulation with the Prime Minister. The other Judges of the Supreme Court and the High Court were to be appointed by the president in Consulation with the Chief Justice jof the Union and the Prime Minister. In bth cases the approval of both chamers jof parliament was to be obtained.

The Constitution of the Union of Myanmar, unlike the Indian Constitution, is not a very long document. Although it is by no means a very short one
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in consisted of a Preamble and fourteen

chapters, this in turn was making up of 234 sections. The Constitution has also four schedules attached to it. The first schedule describes the form of Oath of Affirmation to be taken by a person who has been chosen as a member of the Chamber of Deputies or the Chamber of Nationalities. The Second Schedule lays down the composition of the Chamber of Nationalities. The Third Schedule is divided into two lists: List 1. Which are the Union Legislative List, and List II, which is the State Legislative List. The fourth Schedule is the State Revenue List.

One of the reasons why the Myanmar Constitution is not longer is that certain matters of detail are not included in it. For example the provisions regarding citizenship in the Constitution are not elaborated. They were later more fully enacted in the Union Citizenship Act. So also the Constitution does not contain in great
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The Constitution and the Schedules are annexed to this Article as Appendix I

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detail the provisions Union Judiciary. Such provisions are to be found in the Union Judiciary Act 1948. The Constitution also does not contain elaborate provisions regarding the election of members of Parliament and the apportionment of seats of Myanmar proper and the other component units of the Union of Myanmar in the Chamber of Deputies. This is to be found in the Parliamentary Elections Act 1948. Thus the Constitution of the Union of Myanmar cannot be regarded as a complete Constitutional document. One must be in mind that there are several acts which have a direct bearing on the Constitutional structure of the country.

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Regarding the sources of the Constitution the first source is the Government of Burma Act, 1935. There is not doubt that some of the sections of the present Constitution are obviously related or inspired by some of the sections of the Government of Burma Act.
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Thus as pointed out already the Myanmar constitutional

adviser U Chan Htoon during his visit to Delhi in April 1947 head the benefit of Indian ideas on the Constitution. In fact Sir Benegal Rau claims that the first draft of the Myanmar Constitution was drawn in India and taken back to Yangon in May, 1947. It is also a known fact that Sir Benegal Rau himself came over to Yangon to give advice on the final draft . Thus it is not surprising to find that some sections of the Constitution of the Union of Myanmar are identical or almost identical to that of parallel provisions in the Indian Constitution.
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The Government of Burma Act. 1935. is sometimes referred to as Myanmar Constitution under British rule. Powered. the Act was by no means a complete constitutional document. The powers of the Head at the Executive (The British Governor ) and the way the Government was to be run was largely contained in the instructions to the Governor by the British Monarch Thus these instructions are also to be regarded as part. Myanmars Constitution unde r British rule. Dr. Maung Maung

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Beside the Indian Constitution the Myanmar Constitution is inspired by the other Constitutions. Thus the President as the nominal Head of the Executive is to some extent inspired by the French Constitution (The fourth Republic). The portion on Fundamental Rights the ideological portion is inspired by the Constitution of the United States and coloured by that of later Constitutions like the Constitution of Eire. The idea of incorporating Directive Principles is also taken from the Constitution of Eire. There are also other sections in the Constitution like the one which deals with the question of dissolution of Parliament (s.57), which is directly based on the Constitution of Eire (Art. 13) (2). The provisions regarding the powers and functions of the President are also very similar to that contained in the Constitution of Eire. The Yugoslav Constitution was also consulted frequently-particularly in regard to the provisions relating to the economic policy of State Socialism.

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Last but not the least comes the (unwritten) British Constitution and the conventions of the Constitution. For example there is no doubt that the principle or responsible Government has been borrowed from the British system. Thus the English convention that the Prime Minister and Ministers are collectively responsible to the popular chamber is to be found in s. 155 of the Myanmar Constitution. The convention that Parliament must be summoned at least once a year is to be found in s. 66 of the Constitution. Again the Convention that financial proposals may be introduced only in the popular Chamber of the Legislature is enacted in s. 103 of the Constitution.

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In copying the English conventions it cannot be said that the framers of the Myanmar Constitution have done so in toto. Such a thing is obviously impossible. Thus s. 115 of the Myanmar Constitution does not exhaustively lay down the principles upon which the Cabinet system should work.

It merely incorporates the principle of collective responsibility but nowhere mentions the principle of individual responsibility of the Ministers concerned.

Another Convention of the British Constitution which was meant to be incorporated into in Myanmar Constitution but has not yet been fully appreciated is that the king must always act on the advice of his Ministers. The principle behind this convention has been enacted in s.63 (1) of the Myanmar Constitution and is in the following terms:-

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63 1 The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Union Government save where it is provided by his Constitution that he shall act in his discretion or on the advice or nomination of or on receipt of any communication from any other person or body.

The question which remains to be answered is whether in matter where the Myanmar Constitution is silent should the English convention on the point be followed or should a different rule be adopted? The answer probably would be that as we have already adopted the British system of Parliamentary Government, English conventions should be followed as something which has been successful in practice.
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See Basus Commentary of the Constitution of India Vol P. 21

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There will of course be occasions where because of situations peculiar to Myanmar, British Conventions will not be applicable. Thus the Myanmar nation will have to evolve its own conventions and these conventions will in due course from part of Burmas Myanmars Constitution. In fact over the last thirteen years since Independence there has already been evolved the Convention that when the name of a prospective Judge of the High Court or the Supreme Court is put up for approval to the Chambers of Parliament under section 140 of the Constitution members must refrain from speaking against the candidates in any detail. This is because Judges must have untarnished names and the confidence which people have in them must be complete.
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3.3

The Evolution of the Federal Structure

The Necessity of Federation

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Maung Maung Burmas Constitution p. 149

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The Panglong Conference in February, 1947 made it fairly clear that besides the Shans, the Kachins would also like a State. The Chins however than seemed to be satisfied with something less than a State.

At the investigations made by the Frontier Areas Enquiry Committee a few months later in March and April 1947 the stand taken by the Karenni and the Karens made it even clearer that the amalgamation of the Frontier Areas (including those inhabited by the Karens) with Ministerial Myanmar would not be possible and that some type of Federal Constitution would be necessary
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3.3.1 The Drafting of the Federal Provisions Thus in May 1947, when the AFPFL Convention sat to draft a Constitution the problem of drafting the Federal Provisions was found to be a difficult one. It was then decided that three different classes or units should be included in the Constitution: viz The Union State: the Autonomous State: and the National Area.

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See: Report of the Frontier Afeas Committee of Enquity part 1. P 27 Government Printing Press 1947

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The status of a Union State was to be accorded to a people who have:-

(i)a defined geographical area with a character of its own: (ii)unity of language different from the Myanmar: (iii)unity of culture: (iv)community of historical traditions: (v)community of economic interests: a measure of economic selfsufficiency:

(vi)a fairly large population: (vii)the desire to maintain its distinct identity as a separate unit. Moreover, it was provided that the Union State would have its own Constitution in conformity with the constitution of the Union

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and its own special characteristic and feature. It was also provided that it would have its own legislature which would elect a Governor who would be the Head of the Union State. UnionState)

The second status was that of an Autonomous State. It was to be accorded to a people who more or less possess characteristic enumerated in respect of the Union State, but lack in economic self-sufficiency. The Autonomous State was to have an elected State Council which in turn would elect a Chief Executive Officer who would be the Chief of the State. The State Council was to have certain legislative powers by making ordinances in respect of certain matters. (Autonomous State)

The third status was that of a National Area. It was to be accorded to a people who lacked the qualifications for the Union State or the Autonomous State but possess more or less a distinct

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language and a territory in which they are concentrated in appreciable numbers, and a desire to maintain their distinct identity unlike the Union State and the autonomous State the Chief Executive was not to be elected, but was to be appointed by the President of the Union and was to be called the Administrator. There was also to be an Advisory Council to assist the Administrator. The Advisory Council was to have the powers and perform the functions of a local self-governing body. (National Area

The above classification of the status of component units join the proposed Federal Structure for Myanmar was indeed most interesting. Apparently the AFPFL Convention is drawing the first draft of the Constitution head in mind the Federal Constitutions of Countries like the U.S.S.R and Yugoslavia where different areas are given different status according to their stage of development.

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Although the AFPFL draft makes no mention as to which minority groups were to be accorded which status it is possible that the status of Union State was meant for the Shans, the Kachins and the Karennis would apparently qualify for the Autonomous State because of their lack of economic selfsufficiency. Moreover, in the case of the Karennis they did not even have a fairly large population. The status of National Area was probably meant for the Chins who in any case did not desire a State at that time.

It would also perhaps be correct to say that the Karens must have presented a real problem to the AFPFL Convention which prepared the first draft to the Constitution. They have a large population (more than 1/10
th

the total population of Myanmar)

which is scattered unevenly all over the country. Their main concentration is however in the Salween District the Delta Region and the Toungoo District. To carve out a state for them was not simple. Nonetheless being a large minority group with their own culture and language the deserved special protection and right. It

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was probably for this reason that the AFPFL convention in its draft of the Constitution included a special Chapter for what was called National Minorities.

A National Minority was defined as a group of persons who:(1)Differ from the Myanmar in race, language, culture and historical tradition and

(2) form at least one-tenth of the population of Myanmar or of any unit.

A National Minority was guaranteed human rights, national or cultural rights: freedom of association with cultural autonomy. It was specifically provide that for the Karens (who obviously qualified as a National Minority) there would be a Karen Affairs

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Council to aid and advise the Union Government on matters relating to the Karens.

3.3.2 Some Practical Difficulties Fortunately, or unfortunately, the above provisions embodied in the first draft Constitution produced by the AFPFL was not embodied in the final draft of the Constitution which was adopted by the Constituent Assembly on 24
th

September 1947. No doubt

the above provisions would have secured a stricter Federal Structure but practical difficulties had to be considered by the constitution Committee of the Constituent Assembly.

Probably one of the main reasons in not adopting the Federal Structure envisaged in the AFPFL draft was that it was realized that it would involve too much personal as well as money. According to U Chan Htoon the Constitutional Adviser, the

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Federal Organs and Myanmar proper alone would call for about 100,000 people. The cost in money and men of keeping a strict Federal Structure would therefore have been prohibitive.
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Another factor that must have loomed large in the minds of the Myanmar leaders was the question of national unity. Would a true federal State make the frontier peoples and the Karens come closer to the Myanmar? A true Federal State, ex hypothesis, is meant for people who want union but not unity.
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At the same

time it was clear that the formation of a Unitary State would not be possible. The minority group in Myanmar desired a federation.

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See Constituent Assembly Proceedings. Vol. 2 No.5. Aug 4. 1947, p. 133 Government Printing Press Yangon. See C.F Strong National Political Constitutions. Revised Edition 1952. p. 99

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3.3.3 The Federal Pattern

Thus the Federal Pattern that was evolved and was finally enacted in the Constitution was more or less as follows:-

(1)

The important minority groups, namely the Shans,

Kachins, Karennis and Karens, would have their own States would form autonomous units in the Union of Myanmar, which would be a Federal State

(2)

Each State was to have its own State Council, which

was to be composed of members of both Chambers of Parliament coming from the constituencies of that State.

(3)

That one of the aforesaid members of Parliament is to

be appointed by the President (in consultation with the State Council) as a member of the Union Government (Ministry). That person is also to be the Head of that State. The Head of State will also be the Chief Executive for that State.

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(4)

That the State Council concerned will also be the State

Legislature. It will have powers to pass Bills coming under the State Legislative List. In other words, what is called the reserve of powers will be within the Union Government.

(5)

The State Executive the State Government) is to

consist of the Head of State and a Cabinet will be selected from members of the State Council.

3.4

The Federal Provisions under the Constitution.

A Brief sketch has been given of the federal pattern that was enacted into the Constitution. The Federal Provisions in the Constitution may now be examined in more detail.

First of all, it is important to realize that although the Union of Myanmar is a federal State, it is only a moderate type of

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Federation based more on the Canadian model rather that of the United States.

The component units of the Union of Myanmar under the Constitution s. 222 1 consist of the States and all the territories of the Union of Myanmar not forming part of any State. The latter territories therefore consisted of what is popularly called Myanmar proper and also territories like the Araken Division the Chin Hills Special Division and the Kawthulay Region.
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The interesting feature in the Constitution therefore is that while these territories together form a unit of the Union of Myanmar they do not form State. Therefore there are no separate organs for these territories. The Union Government and the Union Parliament are also Executive and the Legislature respectively for these territories.
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As will be seen later the kawthulay Region has more or less been merged into the Karen State which was formed in 1951. The Karen State is now a unit by itself. This set up is now a cause of dissatisfaction by the States. Their connection is that Burma proper becomes a sort of a super state within the Union. They feel that Myanmar proper should also be a state and have its own organs, separate from the organs of the Union. Thus there would be grater equality of treatment. This point is discussed further at of this Article.

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3.4.1 The States and Their Territories At first the Constitution provided for the establishment of three States only; namely, the Shan state and the Karenni State (s. 5.6.7). It also contemplated that in due course the Karen State was to formed (s.180). At the time of the enactment of the Constitution no agreement had been reached as to the areas which were to comprise the Karen State. In the meantime there was to be an area called the Kawthulay region s. 181 .

As far as the State territories were concerned, the Shan States was to include the territories which were previously known as the Federated Shan States and the Wa States (s. 5). This area was apparently acceptable to the Shans.

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The Kachin State was to comprise the areas previously known as the Myitkyina and Bhamo districts (s.6). The allocation of areas to the Kachin State was quite liberal as Myikyina and Bhamo town never belonged to the Kachin Hills Administration and was hitherto in Myanmar proper.

The Karenni State was merely an amalgamation of the previous Karenni States i.e. the areas hitherto know as Kantarawaddy, Bawlake and Kyebogyi (s.7).

3.4.2 The State Councils

Each State was to have its own State Council. The members of both Chambers of Parliament (i.e. Chamber of Deputies and Nationalities) from the States are to comprise the State Council. The State Council is also the legislature for that State.

The composition of the Council however varies for each State. As far as the election from the States to the chamber of Deputies is concerned, the method is to be the same as that to be adopted by Myanmar proper i.e they are to be elected on a population basis (s.

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83). Under s.83 (2) of the Constitution, membership to the chamber of deputies is to be fixed at not less than one member for each 100,000 of the population or at more than one member for each 30,000 of the population. However, special provision has been made for the ratio to be given in the Karenni State which has a population of about 7.000 only.

Thus we find that in the Parliamentary Election Act 1948. it was stipulated that the total number membership to the Chamber of Deputies was to be 250 out of which the following allocation was made to the States. (1) (2) (3) 25 members for the Shan State 7 members for the Kachin State; 2 members for the Karenni State;

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As already state all these members are automatically incorporated into the respective State councils.

Regarding the provisions for the election of members to the Chamber of Nationalities from the States, the procedure was different from that for Myanmar proper, and also different between different states. Under s.87 of the Constitution, the Chamber of Nationalities was to consist of 125 members as allocated in the second schedule of the Constitution. The second Schedule in turn made the following allocation to the State.

(a) (b) (c) 25 seats to be allocated to the Shan States: 12seats to the Kachin State 3seat ot the Karenni State

Under s. 154(3) of the Constitution the said 25 representatives from the Shan State in the Chamber of Nationalities was to be elected by the Saophas (hereditary chiefs) of the Shan States among themselves.
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Thus the Saophas alone could be elected to

This provision has been repelated after the surrender of powers by the Saophas in April 1959 under the Constitution (Second) Amendment. Act 1959

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the Chamber of Nationalities. To counter balance this provision it was also provided that the Saophas are not eligible for election to the Chamber of Deputies.

This provision was however only a transitory provision. It was designed on the one hand to appease the Saophas and on the other hand to give the Mon-saophas an opportunity to make them familiar with Parliamantary democracy. If the Chamber of Deputies was made open to the Saophas after independence, the saophas would probably have gained most of the seats there also.

As far as the Kachin State was concerned there are to be proper elections for the Chamber of Nationalities as in Myanmar proper. However out of the 12 seats in the Chamber of Nationalities, 6 are to be filled by respresenntative of the Kachinines and the other 6 by those of the non-kachins. This is because Myitkyina and Bhamo towns which are in Myanmar Proper before the

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Constitution is populated by a considerable number of Myanmar and non kachins like the shan-Talok and Gurkhas.

Regarding the Karenni State representation in the Chamber of Nationalities presented no diffculty, as it was stipulated in s. 183 of the Constitution that the Sawphyas of Kanatarawaddy, Bawlake and Kyebogyi are to be represented in the Chamber of Nationalitits. Thus the three seats reserved for the Karenni State was to go to them. No election is therefore required.

Coming now to the procedure functions and powers of the State Councils, we find that the provisions in the Constitution for each of the State Councils are substantially the same although they are reproduced under different Chapters.

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As each State Council is also the legislature for the State, it can pass Bills for subjects coming under the State Legislative list under s.92 (2). This list is appended in the Constitution as List III in the Third Schedule.
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Such Bills passed by them are to be


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presented to the President for signature and promulgation

is to

sign the Bill within one month of presentation .If he feels that it is repugnant to the provisions of the Constitution, the Supreme Court consisting of not less than three Judges is then to consider the question referred to it and pronounce this decision within thirty days of the date of reference. If the Supreme Court decides that the Bill is repugnant to the Constitution the President is to return the Bill to the State Council for reconsideration. The State Council is then to make the necessary amendments. Otherwise the President will not sign it. If however the Supreme Court decides in favor of the State Council. The Bill is to be signed by the President. Once the President has signed the Bill the validity of any of the provisions of the Bill is not to be called into question on the ground that it was beyond the competence of the State Council.

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Note however the provisions of s.94 & 95 of the Constitution. Under s. 94 wen a Proclamation of Emergency is declared by the President that Union Parliament can make law for any. State for part there of) for matters enumerated in the State Legislative List. Under s.95 where two or more State Councils desire the Union Parliament to pass an Act in respect of maltiers coming under the State Councils concerned shall have the power to amend such as Act by itself. Bills passed by the State Councils can apparently be passed by a majority vote. However in view of the existaence of non-Kachins in the Kachin State special provision is made in s.167(1) of the Constitution that a Bill prejudicially affecting any right or privilege of the Kachin jor non-Kachins as a class or commodity cannot be passed unless the majority of the members representing the Kachins or the non-Kachins as the case may be present and voting have voted in its favour.

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For matters beyond the competence of the state Council to legislate the State Council may recommend to the Union Parliament to pass law.

As far as the summoning and proroguing of the State Councils are concerned this is left in the discretion of the Head of each State. However the Constitution provides that there shall be a session of

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the Shan State councils once in every year and so that a period of twelve months shall not intervene between the sitting of each session.

3.4.3 The State Governments

The State Government consists of the Head of State and a Cabinet of State is to be a member of the Union Government. The Head of State is to be nominated from among the members of Parliament (of either chamber) representing that State. The nomination is to be made by the Prime-Minister in consulation with the State Council concerned and the appointment is to be made by the President.
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The Head of State is to be in charge of the administration of the State. In other words the executive authority of the State is
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After the split of , A.F.P.F.L in 1958, the question arose whether the Prime Minister could appoint the Hend of State without consulting the State Councils. there being no State Councils to consult. The matter was referred to the Supreme Court for the opinion of the Court & the opinion rendered was that the consulation clause.7 was directive rather than mandatory. See Burma Law Reports 1958 P. 81 (SC)

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exercised by him. However in respect of matters regarding which the State Council has power to make laws, the decision is to be binding on the Head of State. It is also provided that in all other matters the Head of State is to consult the State Council. But this can be done through the Cabinet of State Ministers which as already observed are selected from among the members of the State Council.

There are also provisions in the Constitution making of a State responsible to the State Council concerned. Thus the Head of a State is to give a State and recommend for the consideration of the Council such measures as he thinks fit for the general welfare of the State.

The Head of the State is also to prepare the budget estimate of the State and present them to the State Council. After

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consideration and approval by the State Council the State budget will be incorporated into the Union Budget.

3.4.4 State Secession

At the time when the Frontier Areas Enquiry Committee help its investigations in March and April 1947, the majority of witnesses who appeared before the Committee and favoured a federation also asked for the right of secession at any time. The Committee was however good enough to observe in its report that few Federal Constitutions contain provision for the secession of component states. They were of opinion that if such a right were to be contained in the federal Constitution of Myanmar, it would have to be carefully limited and regulated.
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26

See p. 28-29 of the Report Part 1

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Thus from the time the first draft of the Constitution was drawn up by the AFPFL convention in May 1947, the right of secession head to be include. There was provision that the right of secession was to be accorded to the Union State and the Autonomous State, Subject to certain safeguards. Later although this classification was dropped that right of session was incorporated into the final draft of the Constitution.

The right of secession is defined in Chapter X of the Constitution. Section 201 states that save as otherwise expressly provided in the constitution or by Act of Parliament every State shall have the right to secede from the Union. This right is subject to the conditions laid down in the other sections following it. Then in section 178 it is otherwise expressly provided that Chapter X of the constitution shall not apply to the Kachin State in order words the right of secession was not given to the Kachin State but was only given to the Shan State and the Karenni State. This was because the Kachin State itself was built up with the addition of Bhamo and Myitkyina from Myanmar proper. The States future must therefore inserverably linked with that of the Union.
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See Maung Maung Burmas constitution p. 193. Note also that when the Karen State was later formed under the Constitution (Amendment Act. 1951. the right of secession was expressly not given to the Karen State. This point is later deal with in the Article under the heading Changes in the Federal Provisions after Independedce.

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Under section 202 of the Constitution the right of Secession is to be exercised only after 10 years. In otherwords the right becomes exercisable after January, 4
th

1958. Sections 203.204 and 205

prescribe the procedure and requirements for the exercise of the right. Any State which is qualified to exercise the right of secession and wishes to do so must have a resolution passed to that effect by its State Council. For passing such a resolution 2/3
rd

of the total number of members of the Council must vote in its favor. After passing such a resolution the Head of State concerned must notify the President. The President shall three upon order a plebiscite to be taken for ascertaining the will of the people of the State concerned, and appoint a plebiscite Commission to supervise the plebiscite. The commission is to consist of an equal number of members representing the Union and the State concerned.

41

3.5

The President (Head of executive) It was clear to the framers of the Myanmar constitution that

Myanmar would become a Republic after the British left Myanmar. The problem was therefore to define the status, functions and powers of the Head of the Executive and to decide by what name he was to be called. The obvious thing therefore was to follow the precedents from the existing Republics and call the Head of the Executive The President.

42

It was also clear that Myanmar being already wedded to the system of the Parliamentary Executive (Which was introduced into Myanmar/ the British) the reins of Government would be placed in the hands of the Prime Minister and his cabinet which would be the real Executive while the President would be the nominal executive.

Turning to precedents the position of the French Republic must have given a good example of a President who is the nominal Executive. Moreover, the Framers of the Constitution were also greatly attracted by the provisions of the Constitution of Eire. This was because the course taken by Eire in leaving the British Commonwealth somehow appealed to the Myanmar leaders who had decided on the same course. Thus we find that many provisions of the Myanmar Constitution relating to the President are very similar to that contained in the constitution of Eire.

43

3.5.1

Status -

Under section 45 of the Constitution, the President shall take precedence over all other persons throughout the Union. Thus the President is not designated as Head of State. This provision is almost identical to that contained in Art. 12(1) of the constitution of Eire.

3.5.2 Qualifications -

The Qualifications for the President are simple and by no means imposing under section 49 of the constitution the President must be a citizen of the Union who was or both of those parents were born in any of the territories included within the Union and are qualified for election to the Union Parliament. Under section 76 1 Every citizen who has completed the age of twenty one years and who is not placed under any disability or incapacity by the Constitution or by law shall be eligible for membership of the Parliament. The disabilities placed under the Constitution for election as a member of Parliament is in turn enumerated in section 74. Thus a person who is a citizen of or owes allegiance to a foreign country or who is a discharged bankrupt or insolvent: or

44

who is of unsound minor hole an office of profit; or has been convicted of a serious criminal offence; or has been found guilty of election malpractices; cannot become a member of Parliament. The President therefore cannot possess these qualities.

The first point to note regarding the qualifications of a President is that it is not only restricted to citizens (which is to be expected) but the test place of birth is also contained. This requirement is not to be found in the Constitution of India or Ireland, or the Myanmar Constitution is closer to the US Constitution where Article 11, section 1(5) a person must either be a natural born

45

citizen or a citizen of the United State at the time of the adoption of this constitution.

At the same time; it is note worthy that there is no difference is age limit for election as a member of Parliament where as in most Constitution the age limit for a president is higher. Thus in the constitutions of Ireland, India and the United States a person below 35 cannot become President while in the late Constitution of Pakistan the age limit was at 40.

3.5.3 Method of Appointment Under section 46 of the Constitution the President is to be elected by both Chambers of Parliament in joint session. Detailed

46

regulations regarding the election of the President are to be found in the President Elections Act 1949 . This method of election is somewhat similar to that contained in the Indian Constitution where the President is to be elected by an electoral college consisting of the members of both House of Parliament and the Members of the Legislative Assemblies of the State (Art:54). It is also similar to Article 32 of the late constitution of Pakistan which states that the President is to be elected by an electoral college consisting of the members of the National Assembly and the Provincial Assemblies. In Myanmar however to Electoral College was necessary as the members of the State Councils (the State Legislatures) are also members of the Union Parliament.
29 28

The significant fact however is that the Union President is not to be elected by popular election like the President of the U.S.A or even the President of Eire. Thus, although in many respect the
28

The regulations contained in the said Act are still interesting for example s. 4(1)(c) of the Act require that the nomination paper must be signed by at least 30 members of Parliament In 1952 in respect of one of the candidates, to nomination papers were field signed by 19 and members respectively. The nomination was accordingly rejected by the Speaker of the Chamber of Nationalities. The question was then referred to the Supreme Court which decided that the plain meaning of the law must be taken and by that the rejection was valid see 1952 B.L.R (S.C) p. 135 The late constitution of Pakistan contains provision for only a unicameral legislature and is called the National Assembly.

29

47

provisions regarding the Union President are similar to that of the President of Eire there is this essential difference in the method of election .
30

The reason for adopting the method of indirect election of the President is probably the same as that for India. Thus the main reason would be that if the President were to be elected on direct franchise them the real power ought to be given to him; otherwise the position would be somewhat anomalous another reason would be that a tremendous loss of time, money and energy would be involved in a Presidential election on adult's suffrage. A third reason was that if a President was to be elected directly by the people then he must be someone who must command an efficient and elaborates party machine to win the election. That would exclude people who are not politicians, but at the same time men of eminence who might fill the Presidency well.
31

30

31

This difference is important when one has to consider the behind the limitation of powers of the President. See the speech given by U Nu (the Prime Minister) before the Constituent Assembly. Constituent Assembly Proceeding Vol. 2 No. 3 August 4. 1947. p. 125-126

48

3.5.4 Tenure Under section 48(1) the term of office for a President is five years and under section 48(2) no person shall serve as President for more than two terms in all. So far, nobody has served for more than one term as president. This provision is the result of the adoption of the Irish principle that President shall be eligible for re-election once, but only once Article 12(13)(2)). The same provisions existed in the constitution of the Fourth French Republic (Article 29) and the late Constitution of Pakistan (Article 33). It is however different from that of the Indian Constitution which imposes no limit to re-eligibility (Article 57).

49

3.5.5 Removal A President may be removed from office by impeachment under section 54. The President may be impeached for (i) high treason; (ii) violation of the Constitution (iii) gross misconduct. Regarding the procedure, the charge can be preferred by either Chamber of Parliament or every proposal to prefer a change must be signed by not less than 1/4 of the total membership of that chamber when a charge is preferred by one Chamber it must be investigated or caused to be investigated by the other Chamber. The President has the right to appear or be represented at the investigation. After investigation in order to sustain the offence charged a resolution supported by not less than 2/3 investigating President be chamber or
rd th

of the total member ship of the chamber that caused the

the

investigation is necessary. Only through this process can be removed from office. These provisions for impeachment are also substantially a reproduction of Article 12(10) of the Irish Constitution. It is also similar to Article 61 of the Indian Constitution.

50

If should be noted that the phrase cause to be investigated seems to imply that the other Chamber may delegate the work investigation to any Court Body or Tribunal appointed by it. So far these technicalities have not yet been thrashed out as no President has yet been impeached.

3.5.6 Vacancy

Myanmar has no Vice-President as in the case of India. Whenever the Office of President becomes vacant the powers and functions of a Commission is to be composed of the Chief Justice Union,

51

the Speaker of the Chamber of Deputies and the Speaker of the Chamber of Nationalities. When the Chief Justice of the Union is unavailable or unable to act; the Acting Chief Justice or any other Judge of the Supreme Court is to take his place. So also the deputy Speaker is to take the place of the Speaker is similar circumstances.

Such a situation arose only once since Independence in December 1957, when the present President went for medical treatment to the United State.
32

A Commission composed of the persons

mentioned above was duty formed. A practical difficult however arose in considering how the commission was to perform is a duty at the Manual Independence Celebrations on January 4 time.
th

1958.

33

Fortunately, however, the President arrived back in Yangon in

32

Apparently on the advice of the Union Government for otherwise the President cannot leave the Country. See s.52 of the Constitution. 33 The problem was whether the three members should take the salute together and who was to deliver the address.

52

3.5.7 Powers and Function From the point of view of the academic Constitutional lawyer this is one of the most intriguing problems in Myanmar today. Interest in this matter has been aroused by the stand lately taken by the present President (U Win Maung) that the President has no real powers and he is more or less a dummy.

To arrive at a correct interpretation of the nature and scope and the powers of the President one must first bear in the mind the provisions of section 45 of the constitution the latter part of which states that the President shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.

53

Then there comes section 59 the first part of which states tat subject to the provisions of this Constitution the executive authority of the Union shall be vested in the President.

It is interesting to note that the provisions in these two sections of the Myanmar Constitution are more or less combined in Art. 43(1) of the Indian Constitution which is in the following terms:

Art. 53(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

However, though both the Indian and Myanmar constitution way that the executive power shall be vested in the President in the same way it is said in the U.S. constitution (Art. 11. Sec. 1(1). he will not be the real Head of the Executive like the U.S. President. He will have to exercise his functions in accordance

54

with the Constitution thus delimiting the scope of powers given to him.

The Myanmar constitution also makes it obligatory on the President to exercise or perform the powers and functions conferred on him only on the advice of the Union Government except where it is provided by the constitution itself that can act in his discretion or on the advice or nomination of or on receipt of any communication from any other person or body (Sec. 63(1)).

The Indian Constitution on the other hand does not give the President discretionary powers, but at the same time does not expressly make it obligatory on him to act on ministerial advice. It merely states in Art .74(1) that there shall be a Council of Ministers with the Prime Minister as its Head to aid and advise the President. Even then it is generally accepted that the words

55

aid and advise should not stand in the way of responsible government.
34

Coming again to section 63(1) of the Myanmar Constitution, it is clear that it deals with three types of powers and functions of the President: (a) powers or functions, exercisable or performable only

on the advice of the Union government.

(b) discretion.

powers or functions exercisable or performable in his

(c)

powers or functions exercisable or performable on the

advice or nomination of or on receipt of any communication from any other person or body.

34

See basus Commentary on the Constitution of India vol. 1 P. 417 and p. 47

56

The phrase any other person or body in clause c above is generally accepted to include Boards, Corporations or Commissions, which are setups under a special statue or statutory order (delegated legislation).

It should also be observed that section 63(1) is not exhaustive in the sense that it does not cover some of the functions or powers which the President must perform or exercise. For example, the President is to appoint the Prime Minister on the nomination of the Chamber of Deputies. In performing such a function, the question of advice of the Union Government or the question of discretion on the part of the President does not arise.

The main bone of contention now is over the discretionary powers of the President. The problem is really of a two fold nature namely: (1) Whether the president can entirely exclude the

57

advice of Ministers cases where the Constitution allows him to act in his discretion and (2) in cases where no discretion is expressly given to the President, nonetheless, whether the discretionary element can still exist.

Before considering this problem one may first of all enumerate the powers and functions of the President which the Constitution permits to exercise in his discretion. They are:-

(1) Under section 74(vi) a person who has been convicted an offence and has been sentenced for not less than two years cannot stand for election as member of Parliament unless five years has elapsed since his release: However, the President may in his discretion, in any particular case, allow lesser period.

58

(2)

Under section 74(vii) the President in his discretion,

may remove the disqualifications incurred by a Parliamentary candidate or agent for failure to lodge returns or election.

(3)

Under section 107 the President may, in his discretion

refer a disputed question as to whether a bill is Money bill to a Committee of Privileges, on the request of the Chamber of Nationalities for such a reference.

(4)

Under section 143(6) when a charge is made against

any judge of the Supreme Court in any Chamber of Parliament and if the President does not wish to sit and the Special Tribunal which is to be formed to enquire into the charge, then he may appoint some other person in his discretion, to sit on it.

(5)

Under section 147 the President in his discretion may

appoint any person to act as a judge of the High Court, and such appointment is to be revoked by the President in his discretion.

59

(6)

Under section 157, 170(1), 180(6) and 186(1) the

President in his discretion may refer any bill passed by the States and presented to him for signature to the Supreme Court to decide whether the Bill any part thereof is repugnant to the provisions of the Constitution.

On going through the above powers given by the Constitution to the President, it must be admitted that the quantum of such powers is not very great. There is also nothing to suggest on the face of it, that such powers must be or at any rate ought to be exercised on the advice of the Union Government. In fact there is nothing to suggest that he should even consult the Union Government in doing so especially with regard to items 5 and 6 enumerated above.
35

35

Under the Government of Burma Act. 1935 and also in the Government of India Act. 1935 express consultation clauses were contained in respect of the certain functions exercisable by the Governor (or the Governor General) in his discretion. On this point see also A. Gledhi I. The British Commonwealth the Development of its Laws and Constitution (vol.8) Pakistan Stevens and Sons Limited London. 1957. p. 100

60

It should however be pointed out that there is a general belief that the provision in the Constitution providing for the President to perform or exercise certain powers in his discretion is more a result of accident or hasty drafting rather than careful design,
36

and that where ever possible the President should not

leave the Ministers entirely out of the picture as Myanmar has followed the English and Indian example of the Parliamentary Executive. This view is also supported by the fact that the Myanmar Constitution merely uses the phrase in his discretion and not the phrase in his absolute discretion as in the Constitution of Eire. Moreover, the phrase is weaker than the phrase in his individual judgment which is also to be found in the Government of Myanmar Act 1935. The latter phrase was used in that Act in contradistinction to the phrase in his discretion.

36

see Maung Maung Burmas Constitution p. 120

61

Now becomes the question whether the President can still use his discretion in exercising or performing certain powers of functions though the phrase in his discretion is not expressly used. In particular there are three instances in respect of which considerable confusion exists.

Further, there is section 57 of the Constitution which states that the Chamber of Deputies shall be summoned, prorogued or dissolved by the President on the advice of the Prime Minister. The first proviso to that section is however in the following terms.

57 Provided that when the Prime Minister has ceased to retain the support of major in the Chamber the President may refuse to prorogue or dissolve the Chamber on his advice and shall in that

62

event forthwith call upon that Chamber to nominate a new Prime Minister.

It has therefore been argued that the above wording is clear and that discretion is given to the President to refuse the advice of the Prime Minister although the words in his discretion may be absent. Assuming that the President has the discretion to refuse the advice of the Prime Minister the question remains whether he should still seek the advice of the Union Government in view of s.63(1). The practical answer would be that this is not necessary or even practicable as the advice of the Prime Minister (who is the Head of the Union Government) to dissolve Parliament is already there. However this does not preclude the advisability of the President consulting the more important Minister some of whom any certain a different view from that of the Prime Minister or consulting leaders of the opposition party in Parliament. It is also significant to note that a although the proviso is strikingly similar to that contained in Article 13 section 2(2) of the Irish Constitution, that Constitution expressly confers on the President
37

37

This question arose during the split of the A>F.P.F.L in 1958 when the Prime Minister (U Nu) decided to test his strength in the Chamber of Deputies. At that time there was considerable speculation as to whether the Prime Minister would advise the President to dissolve parliament if he lost and in that event whether the President could refuse the advice. However the Prime Mnister managed to retain the majority support in the Chamber of Deputies and the question jof the discretion of the President to refuse the advice for dissolution did not arise . In fact no advice for dissolution was given.

63

the power to refuse in his absolute discretion This phrase is absent in the Myanmar Constitution.

The next question concerns the right of pardon section 60 is in the following terms: 60. The right of pardon shall be vested in the President.

It will be seen that the wording in s. 60 is not very happy and it could be argued that because of the existence of the word right it is the President alone who can exercise it. It is however submitted that this right is in fact a power conferred on the President, and as the words in his discretion are absent. It is to be exercised only on the advice of the Union Government (section 63(1)). This would also in conformity with the accepted convention in England that though the Queen has the prerogative

64

right to grant mercy. It is always exercised on the advice the Home secretary.
38

Thirdly, there is the power given to the President to refer certain matters of law to the Supreme Court.

Section 151(1) is in the following terms:If at any time it appears to the President that a question of law has arisen or is likely to arise. Which is of such a nature and is of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it. He may refer the question to that
38

The Home secretary in England combines most of the functions of the Home Minister and the Judical Minister in Myanmar.

65

Court for consideration and the Court may after such hearing as it think fit report to the President there on.

Here again, it is respectfully submitted that as the words in his discretion are absent, and also as the opinion of the Attorney General (who is the nominee of the Prime Minister) is obviously necessary or desirable in making or drafting the reference, such reference is to be made by the President only on the advice of the Union Government. To put it in plain language. If the Union Government does not agree to the reference (whether it sympathies with the personal view of the President or not) then the President cannot make the reference.
39

39

An interesting question arose recently over the Election Commission Bill which was passed by Parliament a few days before the Constitution (second amendment). Bill. 1961 was passed by Parliament. The President refused to sign the Election Commission Bill on the ground that when the Bill was passed the Constitution (second amendment) Act which created the commission had not yet been passed and therefore it was unconstitutional. The matter was ultimately referred by the President to the Supreme court under S.151 apparently with the approval of the Government although it was not in sympathy with the views of the President. Subsequently at the hearing of the refaced. The Attorney-General withdraw his appearance on the instruction of the Union Government. The question arose whether the Attomey General should continue as amicus curae but the matter was dropped and the Supreme court decided to give is report on the documents on the record . This shows possibility of a conflict between the President and the Union Government .

66

To sum up, although the real powers of the President may be limited, it is difficult to say that he is a mere figurehead. The framers of the Constitution were press on the point that while it was not desired that the President should have dictatorial powers, nonetheless he should not be a figurehead.
40

Thus as we have seen

that the President is in fact given some discretionary powers. Moreover, under section 124, the Prime Minister shall keep the President generally informed on all matters of domestic and international policy. Thus beside the discretionary powers given to him the Prsident appears to have the rights which a British Monarch is supposed to have namely the right to be consulted, the right which a British Monarch is supposed to warn. Much would of course depend on the personality of the President concerned. An adroit President will be able to act as a mediator in important political issues. He can meet theopposition leaders and
It is however submitted that the will of the President in such matter must be the wall of the Union government See the speech of Thakin Nu (Prime Minister )before the Constituent Assembly. in vc 1.2 No. 5 of the Proceedings dated 4th August 1947. P. 125-126

40

67

give the Cabinet his views. Whether they accept his advice or nor is another matter.

68

Thus there is nothing in the Constitution to prevent the President from using his position to be of real service to the country.
41

3.6 The Union Government We now come to the second limb of the Executive (in fact the real Executive) namely the Union government.

3.6.1 Composition Under the constitution the President is not part of the Union Government. Ministers
41

42

43

The Union Government consists of the prime

and the other members (s.114). The Constitution does

42

43

Perhaps it should also be mentioned that under s.61. the President may communicate with the Parliament by message or address on any matter of national importance. The President may also address a message to the nation at any time. On the plain reading of the section it does seem that he could exercise this power against. Ministerial advice. For this view see A. Gledhill. The British Commonwealth Vol. 8 (Pakistan) p.101, where he compares the provision of Art 52 of the Pakistan Constitution (similar to s.61(1) of the Myanmar constitution ) to Art.87 of the Indian Constitution. where the wording is quite different. Thus Dr.E Maung (Judicial Minister). then as an ordinary member of the Chamber of Deputies, objected to the use of the term my government by the president. See Guardian daily. January 6 1957 opcit Dr. Maung Maung Burmas Constitution p. 120 This is the first time that the office of Prime Minister has been given express recognition in burmas Constitution. Previously, under the Government of Burma Act. 1935. s5(1), reference was merely made to a council of Ministers. However the British/ governor following the instructions contained in the Instructions to him by the Monarch, and also the English Convention on the point, would call the leader of the majority party in the House of Representatives (The Lower House) or failing which the leader of a party who could from a coalition to form a Government. This was how Dr. Ba Maw become the first Prime Minister in 1937.

69

not define what a member of the Union Government means but it is clear that it means a Minister. In Myanmar there is as yet no distinction between Ministers who are inside the cabinet and Ministers who are no, as in the case of the United Kingdom or India. Thus all Ministers in Myanmar may be regarded as Cabinet Ministers in the sense that all of them are normally asked to attend Cabinet Meetings.
44

The spirit of the constitution requires not only the Prime Minister and most of the Ministers to be members of Parliament, but that they should also belong to the chamber of Deputies as the Government has been made collectively responsible to the chamber of Deputies. (s. 115) However it is envisaged that there may be occasions where non-members of Parliament may have to be asked to serve as Ministers for a sort while. Thus under s.116 a non member of Parliament is permitted to become a member of the Government but only for a period of six month.
44

Note also that the constitution nowhere uses the word cabinet. But the term is popularly used in all circles and is meant to include the Prime Minister and all the Minister as the Prime Ministers and all the Ministers would sit at the Cabinet Meetings. However after the General Elections in 1960 when the Ministers for some of the States happened to be opposition party members, the Prime Minister would not call them to some of the cabinet meetings. Thus the newspapers have coined the terms outer cabinet and inner cabinet

70

It must also be pointed out that due to national exigencies s.116 had to be made use of. Thus in 1949, at the hight of the K.N.D.O insurrections general Ne Win, (then as Supreme Commander of the Armed Forces) was appointed Defense Minister, and Dr. E Maung (then a Judge of the Supreme Court) was appointed Foreign Minister. Again after the A.F.P.F.L. split in 1958 when Thakin Nu decided to hand over the reins of Government to general Ne Win, s.116 had to be used in a most unexpected way and almost the entire Union government came to consist of non members of Parliament, with the exception of the Ministers for the States.
45

General Ne Win was made the Prime Minister and he


46

picked his Ministers from non-politicians

45

46

This is because the Constitution requires the Ministers for the States who are also the Heads of the States to be members of Parliament (of either chamber). Such a situation was however unusual and was probably never in the contemplation of the framers of the Constitution. The difficulty however arose when it became clear that General Ne Win and his Cabinet would have to be installed for more than 6 months. It was thought by some that under s.116 as there is no prohibition for the renewal of the term of six months. The General and his Cabinet could resign a day or two before the expiry of 6 months and then be re-appointed with the approval of Parliament. Such a procedure while in conformity with the letter of the Constitution, would probably have a violated its spirit. To do away with this difficulty the constitution (Amendment) Act. 1959 was passed by Parliament. and s.116 of the Constitution was deemed to have been repeated as long as that Amendment Act was force. The amendment Act was in force. The Amendment Act died a natural death after the General Election in 1960. when U Nu became Prime Minister. See s 1(1) of the Constitution (Amendment) Act 1959.

71

3.6.2

Appointment Under s. 56(1) of the Prime Minister is to be appointed by

the President, on the nomination of the Chamber of Deputies. It is thus clear that the President has no discretion in this matter. In this respect Myanmar has followed closely the example of Ireland (Art) and the English convention of the monarch calling the leader of the majority party to form a Cabinet has been discarded and put in a more realistic form. It is thus significant that Myanmar is different from India in this respect as the President is to appoint the Prime Minister-apparently following the usual English convention. Pakistan went over further in its Constitution by giving the President power to appoint the Prime Minister in his direction.
47

47

See Art 37(3) of the late Constitution of Parkistan

72

Regarding the other members of the Government, the President is to appoint them on the nomination of the Prime Minister. Thus in this matter also the President has no discretion. Nor does it seem that the Parliament will have any say in the matter as the approval of the Parliament is not required.
48

3.6.3 Removal or Resignation Coming to the question of removal, the Constitution does not contain any specific provisions for the removal of the Prime Minister. As the Prime Minister does not hold office at the pleasure of the President, the President cannot remove him. Unlike the President to can't also be impeached in Parliament. The obvious method therefore to remove a Prime Minister is to bring down the Government by a vote of censure or no-confidence
48

See for example the Irish Constitution Art 13(1) where the approval of the popular chamber is required.

73

motion in parliament. This of course can be done only if the Prime Minister cases to retain a majority support in Parliament in which case he must resign in any event (s.119)

As fair as the Ministers are concerned any of them can be removed from office by the Prime Minister by requesting him to resign. If the Minister concerned to comply with the request, his appointment is to be terminated by the President if the Prime Minister so advises.
49

As far as resignation is concerned the right of resignation is unfettered for the Prime Minister only. Thus the Prime Minister may resign from office at any time by placing his resignation in the hands of the President (s.117(1). It is clear that the President
49

This again is one of the functions of the President in respect of which the President has no discretion Nor does the question of the advice of the Union Government come in as the prime Minister is specifically named.

74

has no alternative but to accept it. The other members of the Government may also resignation is to be placed in the hands of the Prime Minister for submission to the President (s. 117(2)). The President can accept such resignation only if the Prime Minister advises him to do so. Thus it Prime Minister is agreeable to the resignation.

While the resignation of an individual Minister or Ministers unlikely to have serious repercussions the resignation of the Prime Minister (for whatever reason) will always be serious as it automactically entails the resignation of all the other Members of the Union Government. But to ensure containuity of Government, the Constitution provides that the Prime Minister and other Ministers shall continue to carry on their duties until their successors have been appointed (s. 120)

75

3.6.4 The Special Position of the Prime Minister Under the Constitution, the Prime Minister is the Head of the Union Government (s. 56(1)). As has been seen it is he who in fact selects the Ministers and also dismisses them. The stability of the Government depends on him. For if he resigns, the whole Government has to be resign. It is also he who really selects the Attorney General, for the President appoints him on the nomination of the Prime Minister (s.126). He can also remove the Attorney-General in the same way as a Minister (s. 126). The Attorney-General also has to resign when the Prime Minister resigns.

Moreover, it is the Prime Minister who has the main say in selecting the Judges of the High Court and the Supreme Court for

76

though the Constitution states that they are to be appointed by the President with the approval of the parliament, it means that it is the Union Government (whose head is the Prime Minister) that in fact puts up their name to the Parliament.

3.6.5

Collective Responsibility The English convention that Government is collectively

responsible to the popular Chamber is embodied in section115 of the constitution which states that the Government is collectively responsible to the Chamber of Deputies. There is however no express provision for the individual responsibility of the Ministers to Parliament. As the Government is collectively responsibly only to the Chamber of the Deputies a defeat of the Government in the Chamber of Nationalities will have no effect on its tenure. It is also implied that the Chamber of Nationalities can have to power to table a motion of ensure or a non-confidence motion against the Union Government. Although the principle of collective responsibility has been expressly embodied in the Constitution, it is a matter of some regret that it has not yet been fully appreciated. Collective responsibility means that when a decision has been taken by the Cabinet. Every Cabinet Minister must not only vote for it in Parliament. But also defend it outside

77

Parliament. It also entails strict secrecy of what pass as a Cabinet meeting so that dissensions in the Cabinet may not be brought to light.

This principle of collective responsibility had more or less to be kept in abeyance after the split of the A.F.P.F.L in the middle of May, 1958. The Prime Minister U Nu decided to test his strength in the chamber of Deputies. But the same time offered to keep on Deputy Prime Minister U Ba Swe and U Kyaw Nyein and several other Minister who opposed him in the Cabinet up to one day before the meeting of the emergency session of the Chamber i.e. 4
th

June 1958 on the nest day (4

th

June) an non-confidence

mention was to be tabled against him and the winners would from the Government and the losers the opposition. Thus for about a

78

month there was a unique situation were one group of Ministers in the Cabinet headed by two Deputy Prime Ministers scheming and plotting openly and in private against another group of Minister in the Cabinet headed by the Prime Ministers scheming and plotting openly and in private against another group of Minister in the Cabinet headed by the Prime Ministers himself.
50

Some of the

previous difference of opinion in the Cabinet was also disclosed.

It should also be pointed out that the requirement in the Constitution that the Prime Minister is to nominate on of the members of Parliament representing a State to be the Minister for that State in consultation with the State council concerned can sometimes stand in the way of collective responsibility. Collective responsibility requires a Prime Minister to pick his Ministers from persons in whom he can confide or trust. The situation would be awkward where the majority of members of the State council concerned consist of opposition of party members. In such a case, although the Supreme Court has expressed the view that the consultation clause is merely directive in nature and not mandatory,
50 51

51

it would be against the spirit of the Constitution for

For this view see Dr. Maung Maung Burmas constitution p. 135 See 1958. B.L.R. (S.C) p. 81

79

the Prime Minister not to consult the State council if it is in existence and functioning. And if the Prime Minister does not consult the State Council it is bound to recommend the appointment of one of the opposition members of Parliament as the Minister for that State. The Prime Minister was appointed to all the Cabinet Meetings as he would come to know all the deliberations in the Cabinet.

3.7 The President and Parliament The President has apparently been made to belong to Parliament on the English principle of King in Parliament. This principle has also been followed in the other Constitutions like

80

that of Ireland, India and Pakistan.

52

The necessity of including

the President as part of the Parliament seems to be that a Bill passed by both Chambers of Parliament is to be presented to the President for signature and promulgation. The procedure is that the President is to sign the Bill passed by both Chambers within 7 days of the date of presentation (section 111). After signature, the Bill becomes an Act Every Act must be promulgated by the President by publication in the official gazette and it will come into force on the date of promulgation unless a countary intention is expressed (section 112). The Constitution also contemplates occasions where the President for some reason may not sign the Bill presented to him for signature. In such a case after 7 days from the date of presentation, the Bill will become an Act in any case.
53

In other words, the President has no veto power

whatsoever regarding legislation. His functions in this respect are purely formal and of an obligatory nature.

52

In fact this principle had been introduced by the British in the Government of Burma Act. 1935. where His Majesty represented by the Governor was part of the legislature(s.17) 53 Since Independence in 1948 only once jhas an occasion arisen where the President has refuse to sign a Bill presented to him. This was done recently in connection with the Election commission Act 1961.

81

3.7.1 Bicameralism and the Composition The legislature in Myanmar is a Bicameral legislature. In providing for a bicameral legislature the Constitution was also following the tradition which existed under the Government of Burma Act, 1935. Under that Act the legislature had two houses; the House of Representatives and the Senate. The House of Representatives the lower House was more or less on an elected basis. Regarding the Senate, half of the members were to be elected by the House of Representative and the remaining half were to be chosen by the Governor in his discretion. learning.
56 55 54

The Senate

was more or less meant for men of wealth distinction or

54

55 56

For the composition of the House of Representative under the Government of Burma Act. See clause. 3 of he Third Schedule of the Government of Burma Act. 1935 Clause 19. Ibid Clause 12. Ibid

82

(the Representatives) the Senate)

House

of

Apart

from

following

tradition
57

the

framers

of

the

constitution had also in mind the fact that all Federal constitutions possessed a bicameral legislature.

The composition of the Chamber of Nationalities must have personated a problem to the framers of the Constitution. Being then overwhelmed by the idea of democracy it was decided that there should be no nominated members of it, though this is by no means uncommon in many countries which are also admirers of democracy. At the same time it was clear that the samebasis of electing members by the number of population would not be fair on the minority races which head a relatively small population compared to the Myanmar. Thus a system of weighting which
57

for example see the speech of U Chan Htoon the Constitution Adviser in his speech to the Constitution Assembly on 4th August 1947. Note however that later an exception to the rule was created by the Constitution of Pakistan in 1956. when though a Federation only a unicameral legislature was provide for.

83

would ensure that the minority races to be in the majority in the Chamber of Naionalities was finally evolved.
58

3.7.2 Composition Under section 83(1) of the Constitution the Chamber of Deputies shall be composed constituencies determined by law.
59

of

members

to

represent

This subsection (2) then goes

on to say that the members of the Chamber of Deputies shall be as nearly as practicable twice the number of members of the Chamber of Nationalities. Although the Constitution envisages that the actual number of members of the Chamber of Deputies can fixed by law it nonetheless stipulates that it shall not be fixed at less than one member for each 100,000 of the Population.

58

59

It is interesting to note that the literal translation of the term Chamber of Nationalities in Myanmar would be Chamber of Races This law is the Parliamentary Election Act 1948 which was enacted shortly after the Constitution came into force.

84

Under the Parliamentary Elections Act 1948 section 3 the total number of members for the Chamber of Deputies is fixed at 250 and is to be sub divided as follows: (a) (b) (c) (d) (e) (f) 25 seats for the representatives of the Shan State 7 seats for the representatives of the Kachin State. 6 seats for the representatives of the Chin State 2 seats for the representatives of the Karenni State. 7 seats for the representatives of the Karen State. 203 seats for the rest of the Union of Myanmar. The total number of seats for the chamber of Nationalities is fixed in the Constitution itself at 125 seats (section 87). The subdivision is made in the 2 follows:nd

Schedules of the Constitution as

85

(a) twenty-five seats shall be filled by representatives from the (b) twelve seats shall be filled by representative from the (c) eight seats shall be filled by representatives from the Special Division of the Chins; (d) three seats shall be filed by representatives from the Kachin State

Shan State:

kayah State; (e) fifteen seals shall be filled by representatives from the

Karen State: Thus it will be seen that 63 seats are given to the representatives of the States. 3.7.3 Election and Qualification of Members of Parliament Election to both Chambers of Parliament is based for the first time on the system of universal adult suffrage. Thus every citizen above 18 is qualified to vote in the elections to both Chambers section 76(2)) discriminations in the right to vote on

86

grounds of sex, race and religion are also prohibited (section 76(2)).
60

Voting is to be by secret ballot (section 73(5)).

61

Regarding the time for the elections section 84(1) states that the general elections for members of the Chamber of Deputies shall take place not later than 60 days after the dissolution of the Chamber. Section 88(2) states that the general election for the Chamber of Nationalities shall be completed not later than the dissolution. As section 84(2) in turn provides that the Chamber of Deputies shall meet within 60 days from the polling day it, means that the election of the Chamber of Nationalities must be completed within a period not more than 75 days from the polling day for the elections to the Chamber of Deputies. In other words it is clear that the elections to the Chamber of Nationalities will be held only after the elections to the Chamber of Deputies.

60

61

This is subject to the provide that members of a religious order may be debarred from voting. Thus in the Parliamentary Elections Act. s 27. priests of any religion or members of a religious order are not entitled to vote. For other qualification and disqualifications regarding the right to vote see chapter XXX2 (2.18+29) of the Parliamentary Elections Act. 1948

87

Regarding the qualifications for membership to the Chamber of Parliament every citizen above 21 years of age is eligible. (section 76). Provided that he has not been place under any disability or incapacity by the Constitution or by law. Under section 74 of the Constitution a person who is a citizen of a foreign power or owes allegiance to one; or is an undercharged bankrupt or insolvent: or is of unsound mind: or has been found guilty of election malpractices: or has been convicted of a serious offence, cannot become a Member of Parliament. As far as disabilities placed by law are concerned, they are mainly to be found in the Parliamentary Elections Act, 1948. For example, a priest or a member of a religious order cannot become a Member of Parliament. In 1956, an interesting question arose before the Elections Tribunal whether a pastor of the Baptist Church who has relinquished his post and taken to worldly pursuits still remains a member of a religious order. The tribunal rejected the doctrine of Once a Minister always a Minister, and held that the applicant was qualified to be a parliamentary candidate.
62

62

See Saw Doation U San Yin, Election Petition Case No. 1 of 1956. Tribunals report in Myanmar Gazette Part 1 October 6. 1956

88

3.7.4 Speakers Under section 67 of the constitution each chamber is to have Speaker and Deputy Speaker who are to be members of that chamber. They are to be chosen by the chamber concerned and may also be removed by the chamber concerned by a majority vote. So far no Deputy Speakers are regulated by a Special Act passed in 1952.

89

The main function of the Speakers is to see that the rules and procedure of the chamber is enforced and followed special provisions is made in section 82(2) to just the jurisdiction of the court with regard to the Speakers in exercising the powers vested in them under the constitution for regulating procedure or the conduct of business or for maintaining order in the chambers.

Other functions are also imposed on them by the constitution. Thus as we have seen when there is a temporary vacancy in the office of the President the powers and functions conferred on the Preside are to be exercised or performed by a Commission consisting of the Chief Justice of the Union and the Speakers of the two Chambers of Parliament. If for some reason a Speaker is unable to act his place is too filled in by the Deputy Speakers concerned (s.64).

90

Moreover, the Speakers are to play a prominent part in the removal of Judges of the High Court and Supreme Court and the Auditor General. This is because the Constitution provides that a charge against them must be made in either Chamber of Parliament, and in all cases there is to be a Special Tribunal and the Speakers of the two Chambers are to be members in it.

3.7.5 Parliamentary Privilege The framers of the constitution were apparently aware that Parliamentary Privilege is necessary condition of every free legislature. Thus the Constitution expressly lays down in section 68(1) the Privileges of the Union Parliament in two matters (1) Freedom of speech and (2) publication of speeches and proceedings. It is interesting to note that the provision of section 68(1) are the same as the combined provisions of Article 105 clauses 1 and 2 of the Indian Constitution.

91

Regarding the freedom of speech in Parliament, it should be noted that the Constitution itself says in section 68(1) that this is subject to the rules and procedure relating to Parliament and to the provision of the Constitution.
63

However the privilege given is

quite wide apparently no action would lie against a Member of Parliament of defamation obscenity or the like. Moreover although in England the freedom of speech in Parliament is considered to relate only to words spoken by a member in the performance of his duties.
64

The appearance of the words

anything said ..by him Parliament in the Constitution seems to be wide enough to cover even conversations on private affairs provided it is said within the Chamber or any Committee thereof. It is however clear that the words anything said or any vote given by him do not give any community from any criminal act committed within the walls of the Chamber.

63

64

Thus s.81 expressly prohibits discussions in Parliament with respect to the conduct of any judge of the Supreme Court or the High Court in the discharge of his duties. See Wade and Phillip Constitutional Law .p. 111

92

The last part of section 68(1) specially details with the publication of any report paper votes or proceedings by or under the authority of a Chamber of the Parliament. It thus seems that immunity covers only publications by the House or under its authority and that publication by a member privately will come under the ordinary law. In other words the privilege relating to freedom of speech does not extend to publications outside the House except though the medium of official reports. Thus a Member of Parliament, who publishes his speech separately from the debate of his House, would be fully liable for any defamatory statement made by him.
65

Section 68(2) deals with the privileges of Parliament in other matters. It states that they shall be defined by an Act of Parliament in other matters. It states that they shall be defined by
65

Note however that the publication of an unofficial report of the proceedings in the Chamber even through made a private person, would still be covered by qualified privilege. The Myanmar law on qualified privilege as a defense to the tort of defamation is substantially the same as in English law. As far as official reports of either Chamber are concerned the Constitution expressly states that they are absolutely privileged.

93

an Act of Parliament and until so defined shall be such as were immediately before the commencement of this Constitution enjoyed by members of the Legislature of Myanmar.

Regarding the privileges enjoyed by the previous legislature in Myanmar members of the legislature were exampted from the liability to serve as juror or arrest or detention in prison under civil process during sessions of the legislature or any of its committees of which they were member. However under the Government of Myanmar Act, 1935, section 27(3) the legislature had no power to commit for contempt just as colonial legislatures do not possess this power. Thus is seems that the Union Parliament did not possess these powers until the Parliament and Members, Powers & Privileges Act 1959, was passed.

94

It should be mentioned that the absence of a well defined Act until 1959 had lead to controversial questions of privilege from time to time. For example in 1956, during the budget session a member of the opposition from the Chamber of Deputies was arrested in the Chamber precincts for alleged treasonable activities: there was a crime from his friends that privilege had been infringed. The Government however explained the nest day that there was no question of privilege when criminal offences were concerned. Thus a Committee of Privileges was appointed in 1957.
66

Fortunately, an Act of Parliament was passed in 1959 referred to above. By that Act the powers and privileges of the Parliament and its members were attempted to be more clearly defined.
67

66 67

Dr. Maung Maung Burmas Constitution p. 128 The proper authorities are apparently the Speakers of Deputy Speakers of the respective Chambers .

95

The Act substantially reproduces the privileges enjoyed by members of the Union Parliament before the Act came into force which as already indicated were enjoyed by members of the Legislature before Independence. For example a Member of Parliament or an officer of Parliament is exempted from the liability to serve as a juror (s.9). A Member of Parliament is also exempted from arrest or detention in prison under civil process during sessions of Parliament or any of its Committee of which they are members (s.10). Also, during sessions, a member of Parliaments is exempted from being called as a witness before a civil or revenue Court.

On interesting feature of the Act is that it not only prohibits the serving of summons, execution of warrant etc. in civil matters as Member of Parliament within the precincts of the House during sessions or Committee Meetings, but also prohibits the serving of summons execution of warrants etc. in criminal matters in similar

96

circumstances of Members of Parliament or officers of Parliament (s.12).

The provision to section 12 however state that the above things can be done through the proper authority specified in the rules of the respective Chambers.

Another interesting feature of the Act is that it now for the first time recognizes the offence of contempt of Parliament as a punishable offence. Section 18 enumerates the matters which constitute contempt of Parliament. Under section 27 a person found guilty of such an ofference may be punished up to 6 months simple imprisonment or a fine of K.1000/- or both.
68

68

It appears that for such an offence punishment is not meted out by the Parliament itself as in the case of the British Parliament. Procedure appears to be that the Secretary of the Parliament by order of the proper authority (the Speaker) lodges a complaint. The case is then to be tired by the District magistrate or a Magistrate holding first class powers

97

3.7.6 Sessions Under section 66 there is to be a session of Parliament every year with not more than 12 months in between two sessions. However normally Parliament meets twice a year once in August or September, to vote upon the budget had been again in February. Each session lasts about a month. There have however been frequently complaints by the opposition that Parliamentary time is too short and an attempt was made in 1957 to amend s.66 to ensure that there should be at least 150 days of Parliamentary session every year. The proposal was however defeated by the Government.
69

3.7.7 Law making Under s.90 of the Constitution the sole and exclusive powers of making laws in the Union shall be vested in the
69

The Judicial Minster pointed out in opposing the amendment that three sessions were called in 1948 and also in 1947. The proposal for amendment was however not without merit for due to lack

98

Parliament. The provision to the section however adds that the power may be delegated to make rules and regulations under an Act, but the rules and regulations so made must be laid before Parliament for approval.

The law making powers of the Parliament is defined in s.92. The law making powers covers all subjects except those assigned exclusively to the State councils. The subjects assigned exclusively to the State Councils come under the State Legislative list; which List II of the Third Schedule of the Constitution. Thus the Legislative powers of the Union Parliament cover all other matters. In other words, the reserve of power is with the Union Parliament. However for greater certainly the Constitution provided that the Legislative authority of the Union Parliament shall cover all matter contained in the Union Legislative List; which is List I of the Third Schedule of the Constitution.
70

70

At first, there were three lists namely the Union Legislative list the State Legislative List and the Concurrent Legislative List.

99

Though the matters coming under the state Legislative list are the exclusive jurisdiction of the State Councils, the Union parliament is given the powers to make laws for a State or any part thereof in respect of any matters enumerated in the State Legislative List where the President has proclaimed a State of Emergency ((s.94)1). But such laws shall cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate (s.94(4)).

One interesting feature of the Union Parliament is that either Chamber of Parliament can initiate bills in respect of matters coming under the Union Parliament. The only exception however is that Money Bills shall be initiated only in the Chamber of

100

Deputies. This is the result of following the British convention that Money Bill shall originate only in the popular Chamber.
71

When a Bill is initiated in the Chamber of Deputies and is passed by it. It shall be sent to the Chamber of Nationalities. The chamber of Nationalities may amend the Bill (except in the case of a Money Bills) and send back to the Chamber of Nationalities and is passed by it, then it shall be sent to the Chamber of Deputies, The chamber of Deputies may amend the Bills and send it back to the Chamber of Nationalities for consideration.

Where a Bill is passed by one Chamber and accepted by the other Chamber the Bill is deemed to have been passed by both chamber of Parliament (section 100) accepted by the other Chamber. Thus provision is made in section 109 that if one

71

This principle and already been embodied in the Government of Burma Act. 1935. s.63. Thus no financial Bill could be introduced in the Senate.

101

chamber passes a Bill

72

and the other Chamber where the Bill

originated will not agree the President shall convene a joint sitting of the two Chambers: present and voting vote in favor of it.

3.7.8 Money Bills As has been indicated the chamber of Nationalities has the same law making powers as the Deputies except in the case of Money Bills. Thus a money Bill must originate in the chamber of Deputies it shall be sent to the Chamber of Nationalities for its recommendation section 103). However once a Money Bill is passed by the Chamber of Deputies it shall be sent to the Chamber of Nationalities cannot reject a Money Bill nor can it directly amend it. This provision for making recommendations is obviously inspired by the Australian and Irish Constitutions. The Constitution of India (Artticle 109 clause (2)) also contains a similar provision.

72

Except a Money Bill which must be initiated by the Chamber of deputies.

102

The Bill shall then be returned to the Chamber of Deputies within 21 days with recommendations, if any. The Chamber of Deputies has the power of accepting or rejecting all or any of the recommendations, if the Bill is not returned within 21 days. The effect is also the same if the Bill is returned within 21 days but with recommendations which the Chamber of Deputies cannot accept (s.105).

A money Bill is defined in section 106. The power of certifying a Bill as a Money Bill is given to the Speaker of the Chamber of Nationalities. By passing a resolution at a sitting at which not less than 2/3
rd

of the total members are present and request the

president to refer the question whether the Bills is a Money Bill or not to a committee of Privileges. The President may or may not accede to the request in his discretion. If he accedes to the request then a committee of Privileges is to be appointed and the question

103

shall then be referred to it. The Committee is them to report its findings within 21 days to the President. The decision of the President in his discretion on such report is final.

If the President does not accede to the request of the Chamber of Nationalities the certificate of the Speaker of the chamber of Deputies shall stand confined (s.108).

3.7.9 Other Functions Besides its legislative functions, the Parliament has other important functions. For example, the President is to be elected by both chambers of Parliament in Joint session (s.46). Again on the initiation of either Chamber of Parliament the President may be impeached (s.54). The Judges of the Supreme Court or the High

104

Court can also be appointed only after the approval of both Chambers of Parliament in joint sittings (s. 140). The Auditor General is an also be appointed only with the approval of both chambers of Parliament (s.129). The impeachment of this personage is also to be initiated in either chamber of Parliament. Also as we have seen the Prime Minister is to be nominated by the Chamber of Deputies.

3.8 The Union Judiciary

3.8.1 The Judiciary under British Rule The Judiciary in Myanmar under British Rule was notable for two features: (1) it was made independent of the Executive and the Legislature and (2) it was a single unified system with the High Court of Judicature at the apex.
73

73

In certain cases appeals could be filed against the judgment of orders of the High Court in the Privy council in England which was the final Appellate 130 court for the British Empire.

105

Thus under section 8(2) of the Government of Myanmar Act, the Chief Justice and Judges of the High Court were to be appointed not by the Prime Minister or by the Governor, but by his majesty by warrant under the Royal Sign Manual. It was not only temporary or additional judges who could be appointed by the Governor in his discretion nor could the judges be removed by anyone in Myanmar. They were to be removed by His Majesty by warrant under the Royal Sign Manual on the ground of misbehavior or of infinity of mind of body. If the Judicial Committee of the Privy Council: on reference begin made to them by His majesty report that the judge ought on any such ground to be removed

It is also significant to note that although the Governor could by Proclamation takeover the powers of any authority in Myanmar including the legislature under the Government of Burma Act section 139 he was to leave the High Court untouched. 3.8.2 The drafting of provisions relating to the Judiciary

106

The farmers of the Constitution accepted the ideals of the Independence of the Judiciary but the Judiciary with its traditions its aloofness and its privileges was viewed with some suspicion. Thus in drafting the Constitution there was an attempt to combine independence and tradition with some elements of democracy such as accountability to the people. It was therefore interesting to note that in the draft of the Constitution proposed by the AFPFL convention the following provisions were be found.

The Judges of the Supreme Court are to be elected by the Union assembly in joint sitting.

A judge of Supreme Court shall hold office for a period of 10 years...

Thus the original intention was not only to elect judges but also to keep them for a limited period in other words there was to be no security of tenure.

107

Fortunately, this idea, based on over-enthusiasms for democratic principles did not go unchallenged before the Constitution Committee of the Constituent Assembly, eventually a compromise formula was suggested and agreed upon and that was the Prime Minister as the Head of the Government in consultation with the Chief Justice should choose the candidates and submit their names to the Parliament for approval. When approved by Parliament they were to be appointed by the President. Thus there was to be a semblance of the election of judges by the people through their representatives in Parliament. It was also agreed that there was to be security of tenure and appointments of Judges should be made pension able.

108

It should however be pointed out that the consultation clause requiring the President of Union consult with the Prime Minister and the Chief Justice of the Union in the appointment of Judges were deleted on the eve of Independence on 3
rd 74

January, 1948.

The reason given was that the wording of the relevant section as it then stood would read as though the President must first consult the Prime Minister and the approval of Parliament. It the Chambers rejected the proposal then the result would be embarrassing
75

3.8.3 General Features of the Union Judiciary Section 133 of the Union Constitution stated that justice throughout the Union shall be administered in Courts established by this Constitution or by law and by judges appointed in accordance therewith. These Courts shall comprise of Courts of first instance and Courts of Appeal. The Courts of first instance are to include the High Court (section 134). The Court of final Appeal is to be called the Supreme Court s.136 .
74 75

In the appointment of the Chief Justice of the Union the Prime Minister alone would be consulted. See the speech of U Chan Htoon, Constitutional Adviser Constituent Assembly Proceedings vol. 4 No. 1 January 3rd 1948.pp. 16-19. The dropping of consultation clauses have however tended to rise controversy after Independence. The section now real as if the advice of the Chief Justice of the Union need not be taken or if tendered accepted.

109

The significance of the provisions is the Constitution relating to the Union Judiciary is that the British system of a unified judicial system is still maintained. In spite of the federal form of the Constitution, the Constitution however makes two noteworthy changes. Firstly as mentioned above the Supreme Court has been established as a final Court of Appeal more or less to take the place of the Privy Council of England which was hitherto the Court of final Appeal for cases from Myanmar. Secondly in view of the federal nature of the Constitution both the Supreme Court and the High Court have the added function of dealing with disputes arising between the Union and a unit of the Union or between different units of the Union.
76

76

India and Pakistan also continued to adopt the unified system after independence. In this connection see A. Gledhill. The British Commonwealth, Vol.8. Pakistan p. 144 Mr Gledhill is of the view that in a federal constitution it is particularly necessary to provide proper safeguards for the firmness and independence of the Judiciary and that in itself is one reason why judicial power in a federation should not be distributed in the same way as legislative or executive powers. It is therefore better that there should be a single system of courts with the Supreme Court at its apex and that is judgments in all matters should be binding on all courts.

110

It should also be noted that the Constitution specifically deals with only the High Court and the Supreme Court. Even the many important matters relating to these two highest Courts in the land are not dealt with in the Constitution as in the case of the Indian Constitution of Pakistan. They are to be found in the Union Judiciary Act 1948 which came into force together with the Constitution on 4 January 1948.
th

As far as the other Courts are concerned provisions relating to them are to be found in the Courts Act. Thus under this Act, Courts subordinate to the Supreme Court and the High Court is the Distracts Court: the Additional District Court: the sub

111

Divisional Court and the Township Court.

77

Decrees from the

Township Court and Sub-Divisional Court are appeal able to the District Court. Decrees from the Additional District Court and District Court are appeal able to the High Court. For Yangon City there is a special Civil Court namely the Yangon City Civil Court which has concurrent jurisdiction with the original side of the High Court.
78

Yangon City Civil Court 3.8.4 Judges Under section 134(b) of the Constitution the Head of the High Court is to be called the Chief Justice of the High Court. The Constitution does not fix the number of Puisne judges of the High Court. This is done by s.13 of the Union Judiciary Act which states that the number of puisne judges shall not exceed 10
79

77 78

79

These Courts have also criminal jurisdiction. There is however a difference in the pecuniary jurisdiction Suits over the valud of K 10000 are to be tried only by the High Court. At present there are 8 puisne judges of the High Court

112

Regarding the Supreme Court section 136(2) of the Constitution provides that the Head of the Supreme Court shall be called the Chief Justice of the Union. The Chief Justice of the Union is to take precedence over all other judges in the Union of Myanmar. The constitution again does not fix the number of judges for the Supreme Court. This is done by s.3 of the Union Judiciary Act which states that the number of pusine shall not exceed four
80

The salaries of the Judges of the High Court and the Supreme Court are laid down in the Union Judiciary Act. Under section 32 the Chief Justice of the Union is to receive a monthly salary of K.3,500 per month and the other judges of the Supreme Court K.2,500 per month. The constitution however lays down that the salary of a Judge of the High Court or Supreme Court shall not be wearied to his disadvantage after his appointment unless he voluntarily agrees to any reduction in his salary in the event of general economy or retrenchment in relation to all the services of the Union.
80 81

81

At present there are 3 puisne judges of the Supreme Court. This did happen in 1949-50 when the salaries of all government servants were reduced because of the national crisis caused by the insurrection. The judges also surrendered voluntarily part of their salary.

113

Section 142 of the Constitution lays down the minimum qualifications for the Judges. The first preliminary qualification of a Supreme Court Judge is that he must nor only be a citizen. But he must be a citizen who was born or whose parents were born in any of the territories included within the Union or in the alternative he must be citizen of five years standing.
82

Regarding

the

other

legal

qualifications he must be a Judge of the High Court of five years standing or an Advocate of standing of the High Court of at least fifteen years standing. The Chief Justice however must be an Advocate.

82

This requirement has probably been inserted to ensure that a person appointed as judge of the Supreme Court is not only one who understand the country but also understands the people and the institution of the country.

114

As for High Court judges of the Constitution merely requires that he must be a citizen. Regarding his other legal qualifications he must be an advocate of 10 Years standing or has at least for five years held judicial office in Myanmar of in the Union. Not inferior to that of a District and Sessions Judge or Chief Judge of the Yangon City Civil Court. The Chief Justice however must be an Advocate.

It is thus noteworthy that both the Chief Justice of the Union and the Chief Justice of the High Court are to be Advocates. This provision has probably been inserted because the framers of the Constitution may have been influenced by the fact that all judges in England are barristers. And that this is one of the factors which have contributed to the supremacy of the Law in England. No doubt this belief is shared in many quarters but in practice it has

115

led to difficulties. The question whether this provision should be deleted in likely to be considered.

barristers

As to the appointment of judges the Constitution provides (section 140) that they shall be appointed by the President with the approval of both the Chambers of Parliament in joint-setting. In other words the Union Government usually commands a majority in the Parliament it is therefore unlikely that the Parliament would disapprove of a person nominated by the Union Government and once the Parliament approves the President has no alternative in the matter but to appoint. Thus in effect it is the Union Government the Prime Minister and or the Judicial Minister who actually selects the candidates.
83

83

Although the consolation clause requiring the Chief Justice of the Union to the consulted has been deleted the practice seems to be that he is consulted Whether his advice is accepted or not if of course another matter.

116

President may in his discretion appoint a person duly qualified to act as a Judge of the Court (section 147).
84

Such an appointment

will also be terminated by the President in his discretion.

The Judges of the High Court and Supreme Court enjoy security of tenure subject of course the age limits of 60 and 65 respectively and subject further to resignation retirement or removal.

Under the Constitution (section 143) a judge of the Supreme Court or the High Court, may by resignation under his hand addressed to the President resign his office. It thus seems that in this matter the President has no option but to accept the resignation.

84

The principle behind this section seems to be inconsistent with that of s.140 where the selection lies with the Union Government. This section probably owes its existence to s.83 of the Government of Burma Act. 1935. Where the Governor in his discretion. could appoint temporary or additional judges. It is also likely s.147 will be re-considered by the constitution Revision Committee.

117

Retirement of Judges of the High Court and Supreme Court is allowed under the Union Judiciary Act section 3 4. provide the consent of the President is obtained
85

The removal of judges, being an important matter is dealt with in detail by the Constitution itself. Under section 143(2) a judge of the Supreme Court or of the High Court can be removed from office for proved misbehavior or incapacity. The charge can be preferred in either Chamber of Parliament provided that a proposal to prefer a charge is signed by not less than 1/4
th

of the

total membership of that chamber. The proposal is then adopted if it gets the support of the majority of members present in that Chamber. After the adoption of the proposal the charge is investigated by a special tribunal. Where the charge relates to that of a judge of the Supreme Court the Tribunal is to consist of the President (or a person appointed by him in his discretion) and the two Speakers. Where the Charge relates to that of Judges of the High Court it is to consist of the Chief Justice of the Union and the two Speakers. The Tribunal is then to consider the charge and report to the Chamber by which the charge was preferred. The report is then to be considered by both Chambers in joint-setting
85

At first there was no provision of for retirement. Thus was inserted by as a provision to s.34 of the Union Judiciary Act. by Act XXVIII 1954

118

except in cases where the Tribunal finds unanimously that the charge has not been proved in which case the finding shall be final. After the Chambers in joint-sitting have considered the charge a vote is to be taken. The Judge-concerned will be removed by the President only if the majority of members present and voting at the joint sitting declare the charge to be proved (section 143).

119

It will thus be seen that although the removal of a judge depends mainly on the Parliament the procedure seems to be cumber some enough to prevent a miscarriage of justice. judge of the High Court or the Supreme Court.
86

Foutunately however no attempt has yet been made to remove a

3.8.5 The Supreme Court Under section 148 of the Union Constitution as well as section 4 of the Union Judiciary Act the Supreme Court is to be a court of Record. It is also to have supervisory jurisdiction over all other Courts in the Union. It is to sit in the capital city in Yangon. It can also sit in other places. If the president of the Union wishes so far the Supreme Court has sat only in Yangon.

86

The procedure is not dissimilar to that laid down in the Constitution of India. See Art 124 (4)&(5) See also Art 35(4) of the Irish Constitution.

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As a Court, the Supreme Court must always have quorum of three judges.
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Although the number of puisne judges is limited to

4 the number has not so far exceeded three, it may sometimes happen that for various reasons the necessary quorum of three may not be available. To meet such contingency provision is made in section 146 of the Constitution to permit the Chief Justice and Judges of the High Court to sit on the Supreme Court Bench: if so requested. Moreover section 34 of the Union Judiciary act also provides for retired Supreme Court Judges to sit on the Supreme Court Bench if so requested.

As already mentioned the Supreme Court is the Court of final Appeal. Thus the Supreme Court is to have Appellate Jurisdiction from all decisions of the High Court and shall also have Appellate jurisdiction from such decisions of other Courts as may be prescribed by law (section 136(3)). Appeals from the High any Act, Section 6 of the same Act, further lays down that
87

88

88

Except in interlocutory matters where a single judges sits in Chambers See s.10 of the Union Judiciary Act. The provisions of this section is similar to that of Art 133 of the under Constitution.

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notwithstanding anything contained in section 5 the Supreme Court may in its discretion grant special leave to appeal from any judgment decree or final order of any Court in any civil, criminal or other case.

Besides its function as a Court of final Appeal the Supreme Court other important functions. Firstly there is the function given to the Supreme Court under section 25 of the Constitution to issue writ of habeas corpus, mandamus, certiorari, prohibition and quo-warranto for the enforcement of fundamental rights.

habeas corpus mandamus prohibition quo-warranto certiorari

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Section 25, however has not been vary happily worded as the Supreme Court alone is mentioned in the section. It has been interpreted by the High Court itself to mean that the high court has no power to issue although it did have such as power under British rule. Again section 25 obviously refers to the safeguarding of fundamental right only. Most of these fundamental rights refer specifically to citizens. It has therefore been argued that the writ jurisdiction and the furthermore only citizen can invoke it. The Supreme Court has however held that under the powers of super intendance conferred on it over all Courts in the Union, its writ jurisdiction is not confined to fundamental rights. Moreover the word court, in this context is to be given a liberal interpretation and therefore includes quasi-judicial authorities. It has also hold that the writ jurisdiction can be invoked by foreigners also.

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Secondly there is the advisory role of the Supreme Court under section 151 of the Union Constitution . The President may refer an important question of law to the Supreme Court for consideration. The Supreme Court is then to hear the case and deliver judgment in open Court dissenting opinions are allowed. The Supreme Court is then to submit a report to the President in accordance with the opinion delivered by it. So far 9 references have been made to the Supreme Court since independence. Only in one did the Supreme Court not given an opinion and that was in the references made to it by the President in 1960 as to whether the restriction of commission agents to Myanmar national only offended the provisions of the Nu-Attlee Agreement which to some extent contained safeguards for British commercial interests in Myanmar. The Supreme Court did not give an opinion as it accepted the contention of the Attorney General that the question referred to the court was one of fact and not of law.
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This aspect has been partly discussed under the powers of the President.

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3.8.6 The High Court

The High Court is next to the Supreme Court in the judicial hierarchy. It has both original as well as appellate jurisdiction. Under section 81 of the Government of Burma Act 1935, the High Court was a court of Record and continues to be a Court of Record under section 148 of the Constitution.

The ordinary original jurisdiction of the High Court both Civil and Criminal is limited to the City of Yangon. Under section 135(1) of the constitution the High court is also to have exclusive original jurisdiction to cover all matters arising under any treaty made by the Union and over all disputes between the Union and a unit, or between on unit and another.
91 90

90 91

See s.14.15 &17 of the Union Judiciary Act this seems to be a somewhat unique feature in the Myanmar Constitution for example by s.131 of the Indian constitution exclusive original jurisdiction in such matters is given to the Supreme Court

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The High Court is also given extraordinary civil jurisdiction as well as extraordinary criminal jurisdiction. Thus it has jurisdiction to hear or try civil or criminal case falling within the jurisdiction of any Court subordinate to it. The High Court is also given Maritime and Admiralty jurisdiction.

As for the Appellate jurisdiction of the High Court it has jurisdiction to hear appeals from judgments or orders of a single judge of the court. Civil Courts.
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It is also a court of appeal from all the lower

Furthermore it is a court of criminal appeal from all the criminal courts subordinate to it and from all other courts for which it is

92 93

See s.20. Ibid See s.21 Ibid

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declared to be a court of appeal by any law for the time being in force.
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So far the main seat of the High Court is at Yangon through it may other places. In recent years, one judge has been deputed to sit at Mandalay near Criminal Appeals and Revisions from Upper Myanmar. Whenever there is a necessity to constitute a Bench another judge goes up to Mandalay for the occasion. Although the Constitution specifically mentions in (section 148) the Shan State, as a place where a judge or judges of the High Court may be asked to sit. So far no judge has yet been deputed to the Shan States through there is a strong likelihood that this will be done in the near future.

3.9 Other Important Provisions in the Constitution 3.9.1 Citizenship 94

See s.23 and I& Union Judiciary Act.

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The provisions relating to citizenship in the constitution are included in the chapter on Fundamental Rights, probably because most of the fundamental rights specifically mentioned in the Constitution refer expressly to citizens.95

Under s.10 of the Constitution there is to be only one Citizenship throughout the Union. In other word there is to be no state Citizenship separate from Union Citizenship.

Section 11 lays down the tests for citizenship. It is to be noted that both the blood test and place of birth test are applied.96 Under the Constitution 97 there are three classes of natural-born citizens:

(1)

Persons both of whose parents belong or belonged to any of

the indigenous races of Myanmar.98


95 96

97 98

This however does not mean that non-citizens do not enjoy-rights to fundamental rights sir B.N.Rau. Indias late Constitutional adviser who had a hand in the drafting of the Burmese constitution is of the view that Burmese blood has been made the main test See. Indian Constitutions I the Making. Section ii(i) & (iii) of the Constitution Under s. 3(3) of the Union Citizenship Act. 1948 the phrase any of the indigenous races of Burma means the Arakanese, Burmese, Chins, Karen, Kayah, Mon or Shan race and such radial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823.

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(2)

Persons born in Myanmar, at least one of whose grand-

parents belong or belonged to any of the indigenous races of Myanmar.

(3)

Persons born in Myanmar, both of whose parents are, or if

they has lived at the commencement of the Constitution would have been citizens of the Union.

Under section 11 (iv) of the Constitution certain persons were allowed to elect Union Citizenship, if they fulfilled the following conditions-

they must have been born in territory which at the date of their birth was British. they must have resided in Union territory for a period of at least eight years in the ten years immediately preceding the date of the commencement of the Constitution or immediately preceding January 1, 1942.99

99

This latter benefit was apparently inserted for the benefit of those (mainly Indians) who had to leave Myanmar during the Japanese occupation.

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they must intend to make Myanmar their permanent home. they must signify their election of Myanmar Citizenship in the manner and within the time prescribed by law.100

Under section 12 of the Constitution Parliament was given power to make laws in respect of citizenship and it was expressly state that any such law may provide for the admission of new classes of citizenship or for the termination of the citizenship of existing classes.

Thus a new class of natural-born citizens was created under the Union Citizenship Act, 1948. Under section 4(2) of the Act any person descended from ancestors who for two generations at least have all made any of the territories included within the Union their permanent home and whose parents and himself were

100

Under the Union Citizenship (Election) Act 1948 time for such elections was prescribed as one year from the coming into operation of the Act. and this was finally extended up to April, 1954. thus s. II (iv) of the Constitution was merelyof a transitory nature and is no longer of practical importance.

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born in any of such territories shall be demand to be a citizen of the Union .101

It should also be noted the power given to Parliament under s. 12 of the Constitution to pass law for the termination of the citizenship of any existing classes has caused anxiety in certain circles.102

3.9.2 Fundamental Rights In including a Chapter on Fundamental rights in the Constitution of Myanmar the framers of the Constitution were merely following the example of countries like America, Switzerland, Germany, Ireland and the U.S.S.R. Nevertheless it is to be considered as a contribution to the Constitutional history of Myanmar. For under the Government of Burma of Act under British rule there was no such thing.

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for further details as in who can become citizens see the Union Citizenship Act. 1948 for example the Arakenese Muslim Association Akyab in putting fourth than the fourth elves to the constitution Revision Committee has stated that this power could be misused by any political party commanding a majority in Parliament to harass their orpiments and suggest ed the Celeron of these words in s.4.

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These fundamental rights which have been enacted into the Constitution not only act as Limitations upon the Executive but also on the Legislative authorities. The Constitution enumerates seven types of fundamental rights.103

) Rights of Equality (s. 13 to 15) Rights of Freedom (s. 16 to 19) Rights relating to religion (s. 20 to 21) Cultural and Educational Rights (s. 22) Economic Rights (s. 23) Rights in relation to criminal law (s. 24) Rights to constitutional remedies (s. 25 to 29)
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For a fairly detailed exposition on the Fundamental Right in Myanmar see and article by Dr Alan Gledhill in the Burma Law Institute Journal Vol. 11 No. 11 p.3

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It appears that the fundamental rights in the Myanmar Constitution follow closely both in form and content those recommended by the Advisory Committee of the Indian Constituent Assembly though occasionally the phrasing is more cautions.104 It is also to be noted that the provisions in the Indian Constitution regarding fundamental rights are in much more detail. For Example the Indian Constitution contains a separate Article (Art 22) giving protection against unlawful arrest or detention. Thus in India a person who is arrested cannot be detained in custody without being informed of the grounds for such arrest. He is also given the right to consult and to be defended by a legal practitioner of his choice. No corresponding provision exists in the Myanmar Constitution.

Very recently sections 20 and 21 of the Constitution which deals with Rights relating to Religion were amended by two
104

See Indias Constitution in the making p. 443 Act seq

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Constitution Amendment Acts namely the Constitution (Third Amendment) Act 1961 and the Constitution (fourth Amendment) Act, 1961. Both these Acts caused considerable controversy.

By the Constitution (Third Amendment) Act 1961 which was passed in August 1961, Section 21(1) of the constitution was amended to make Buddhism the State Religion.

Formerly that sub-section merely stated that the State recognizes the special position of Buddhism as the faith professed by the great majority of the citizens of the Union.

Furthermore a new sub-section namely sub-section(5) was added to section 21 to make it obligatory on the Union Government to render financial aid amounting to not less than 5% of the annual current expenditure for matters connected with religions.

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The interesting point is that the word religions not only covers Buddhism but also Islam, Christianity, Hinduism and Animism which are the other important religions in the Union.

This Amendment Act also added 4 new sections to the subchapter on Rights relating to Religion namely sections 21 A. 21 B, 21C and 21 D by which certain obligation were imposed on the Government in connection with the Buddhist Religion.

By the Constitution (Fourth Amendment) Act 1961 which was passed in September 1961 s.20 of the Constitution was amended by adding the word teach. teach

Thus besides the right to freely profess and practice religion the right to teach religion was expressly given so as to avoid any ambiguity on the subject.

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Furthermore a provision was added to s.20 to ensure that children are not taught any religion at school except the religion of their parents. 3.9.3 Directive Principles Chapter IV of the Constitution (section 32 to 44) lays down certain directive principles of State policy. It is expressly stated in section32 that the principles set forth in the Chapter are only for the general guidance of the State and are not enforceable in any Court of law.

Nonetheless the application of the principles in legislation and administration is to be the care of the State.

This general statement in section 32 of the Constitution regarding the utility of the directive principles is similar to that contained in Article 37 of the Indian Constitution.

In some respects these Directive principles correspond to the Instrument of Instructions which was addressed to the Governor

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by the British Monarch. The different now being that they are addressed to all State authorities. Although the Directive Principle are more in the nature of a moral homily the accepted view is that Courts cannot altogether ignore the existence of the Directives in the body of the Constitution.105

It is also interesting to note that though the Directive Principle embodied in the Myanmar Constitution are on the lines indicated in one of the pamphlets prepared by the Indian Constitution Assembly here are certain significant additions.

For example section 40 states that the State shall ensure disabled ex-servicemen a decent living and free occupational training.The children of fallen soldiers and children orphaned by war shall be under the special care of the State. -

105

for this view See Indias Constitution in the Making p.483

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This directive apparently does not find a place in the Indian Constitution because India was not a battlefield and the problem does not exist to this extent. -------Then there are also certain directives which have been inserted because of the intention of the framers of the constitution that the economic policy of the State should be of a socialistic pattern.106 Thus s.41 states that the economic life of the Union shall be planned with the aim of increasing the public wealth of improving the material conditions of the people and raising their cultural level of consolidating the independence of the Union and strengthening its defensive capacity.

This directive principle has been consistently followed since Independence.

Thus soon after independence there was the Two Year Plan this was followed by the Pyidawtha Plan in 1952 and this was inturn followed by the Four Year Plan in July 1957. Lately in the beginning of 1961 a fresh plan called the Second Four Year Plan was lunched. While the success of these plans is matter of
106

See Basu. Commentary on the Constitution of India. Vol. 1 p. 693

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controversy there is no doubt that the Government is power since independence has not forgotten the directions contained in s.41. Mention may also be made of section 42 which states that the State shall direct its policy towards giving material assistance to economic organizations not working for private profit and preference is to be given to cooperative and similar economic organizations.

Lastly, there is section 44, sub-section (2) of which states that the State shall direct its policy towards exploitation of all natural sources in the Union by itself or local bodies or by peoples co-operatives organizations.

It may also be mentioned here that very recently, by the Constitution (Third Amendment) Act, 1961, in addition to the changes made in the Chapter on Fundamental Rights because of the introduction of Buddhism as the State Religion, two new sections in the form of section 43 A and section 43 B were added to the Chapter on Directive Principles. Thus, under s.43A the State is to give assistance and aid to the restoration of ancient

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pagodas and temples. Under section 43B the State is to have separate hospitals for the Buddhist monks. 3.10 Constitutional Amendment Under section 207 of the Constitution any provisions in the Constitution may be amended whether by way of variation, addition or repeal. The manner of amendment is laid down in section 208 and 209.

Like any other Bill, a Constitution Amendment Bill may be initiated in either Chambers of Parliament. However, a Constitution and no other proposals the Bill must then be passed by each Chamber of Parliament, apparently by majority vote as in the case of other bills. But unlike other Bills it must again be considered by both Chambers in joint-sitting. The Chambers in joint-sitting must then pass the Bill with not less than two-thirds of then both Chambers voting in favor of it.
107

members of

107

Note the requisite quorum is not 2/3rds of the members present and voting at the joint-sitting 2/3rds of the them existing members.

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In addition to the above requirement where a Constitution Amendment Bill seeks to amend the State Legislative List or the State Revenue List a majority of members present and voting representing the State or each of . concerned must vote in favor of it at the joint-sitting. A similar requirement is specially imposed in respect of Bill affecting the rights of Chins conferred on them by the Constitution.

When a Constitution Amendment Bill has been passed in the manner mentioned above them and President shall forthwith sign and promulgate the same (s.210).

108

From what has been stated above it can be seen that the procedure of amending the Constitution is not a very difficult or complicate one. Thus for a federal Constitution, the Myanmar Constitution is
108

As we have seen Post other bills are to be signed within 7 days See s.111(2)

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not very rigid. In site of this relative flexibility it will be observed that it also contains certain safeguards for the minority races.

rigid flexibility

One point which also emerges is that as any of the provisions of the Constitution may be amended no special sanctity has been given to fundamental rights. Any of the provisions relating to fundamental rights may therefore be amended at any time.

Within the thirteen years of the operation of the Constitution, five amendments have so far been made. It is interesting to note that so far all of them were passed without difficulty.

The first Amendment was made by the Constitution Amendment Act by which the original sections 180 and 181 were deleted and new sections with the same numbers were introduced. This was

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done to provide for the establishment of the new Karen State and for laying down provisions for the running of the Government of the State.
109

The second amendment was made by the Constitution. This had to be done to enable General Ne Wins Government more than a period of six months.
110

mainly

composed of non Members of Parliament) to remain in power for The third amendment was made in the same year by the Constitution (Second) Amendment Act, 1949, consequent to the surrender of power of the Saophas of the Shan State, and Sawphyas of the Kayan State. By this Amendment the special provisions contained in s 54(2) and s. 183 of the Constitution for their representation in the Chamber of Neutralities was deleted.

109 110

for the reasons behind this amendment see p.post of this Article This amendment Act caused to remain in force from the date Thakin Nu was appointed Prime Minister after the General Elections of February, 1960. This s.116 has now been automically restored to the Constitution.

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The fourth Amendment was made by the Constitution

Amemdment Act 1961 to give legal sanction to the slight diminution of the Union territories consequent to the demanation by the Sino-Burma border under the treaty between the Government of the Union of Myanmar and the Peoples Republic of China. Thus minor changes had to be made in section 2.5 and 7 of the Constitution. -

The Fifth Amendment was also made this year (1961) by the Constitution (second) Amendment Act 1961, for the establishment of an Election Commission, for the superintendence, direction and control of the preparation of electoral rolls for all elections, and of the conduct of elections to the Parliament and the conduct of elections under any other law. By this Amendment a new Part namely Part VI of the Constitution would be contained. This new Part contains ten new sections numbered as s.113 A to 123.

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No doubt, some of the provisions of this Amendment Act have been inspired by the corresponding provisions of the Indian Constitution. It is to be hoped that the enactment of these provisions into the Constitution and the consequential enactment of the Elections Commission Act 1961will reduce the alleged malpractices of all kinds during elections.

The sixth Amendment was made in August 1961 by the Constitution (Third Amendment) Act, 1961, by which Buddhism was established as the State Religion of Myanmar.

This was followed about a month later in September 1961 by the Constitution (Fourth Amendment) Act, 1961 which was meant to provide additional safeguards to the right of freedom of worship. This is so far the last Amendment.

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It is anticipated that in the early part of 1962 fresh Amendments will be made to the Constitution for the creation of the Arakan State and the Mon State within the Union of Myanmar.

146

Key Terms Constituent AssemblyDrafting CommitteeOath of AffirmationChamber of DeputiesChamber of NationalitiesUnion Judiciary ActParliamentary Elections ActGovernment of Myanmar ActConstitution of EireNational Minorities-

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Assignment Questions 1. 2. 3. 4. 5. 6. 7. 8. Explain the drafting of the Constitution of the Union of Explain briefly on the federal provisions under the 1947 What are the powers and functions of President under 1947 Discuss the Special position of the Prime Minister in the Explain the bicameralism and the composition of parliament Explain the Legislative Procedures in the Union of What are the general features of the Union Judiciary under Explain the Directive principles prescribed in the 1947 Burma (Myanmar) 1947. Constitution of Myanmar. Constitution of the Union of Burma (Myanmar)? Constitution of Myanmar 1947 of the Union of Myanmar (1947) Myanmar as prescribed in the 1947 Constitution. 1947 Constitution? Constitution.

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Short Questions 1. What was the status of Union State under 1947 Constitution? 2. What were the States and their territories in the 1947 Constitution? 3. How many the allocations of total number of membership to the Chamber of Deputies stipulated were there? 4. Explain the State Governments under 1947 Constitution. 5. Discuss the provisions of State Secession under 1947 Constitution? 6. Comment the status of the President under 1947 Constitution. 7. Describe the special position of the Prime Minister under 1947 Constitution? 8. State the role of the President and Parliament? 9. How many Seat the total number of members for the Chamber of Deputies fixed under the Parliamentary Elections Act 1948? 10. What the total number of seats for the Chamber of Nationalities was fixed under 1947 Constitution? 11. How many the classes of natural born under 1947 Constitution were there? What were they?

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