Burma’s Constitution

348 Pages·1959·12.092 MB·English

by  Maung Maung LL.D. (auth.)

BURMA'S CONSTITUTION
BURMA'S CONSTITUTION
by
MAUNG MAUNG
LL.D. (UTRECHT),
OF LINCOLN'S INN, BARRISTER-AT-LAW
THE HAGUE
MAR TINUS NIJHOFF
1959
Copyright 1959 by Martinus Nijhoff, TIll Hagru, N,therlands.
Softcover reprint oft he hardcover 1st edition 1959
All rights r,slrVId, including the right to translate or to
reproduc, this book or parts thereof in any form.
ISBN-13: 978-94-011-8225-6 e-ISBN-13: 978-94-011-8890-6
001: 10071978-94-011-8890-6
PREFACE
This is an attempt to study and interpret the Constitution of the Union of
Burma which has now passed its tenth year. A constitution read outside the
context of constitutional history is incomplete, and I have, therefore, tried to
trace the developments which culminated in the constitution; then study its
important features with reference, where necessary, to the background in
which they took shape and form; and, while studying how the constitution
has been working, touch lightly on contemporary events and trends.
It is a vast canvas I am trying to cover and what I am able to draw on it
would inevitably be sketchy. But I do not write as a historian whose focus
is on detail in a narrow area. Rather, having dug and gathered the facts, I
trace their sweep in history. The details I willingly and happily leave to the
historians, hoping only that my study will be of some use to them, if only
as a target for their learned criticism.
Some of the events and people I describe are still too near, and a clear
perspective is therefore difficult. What is nearest appears biggest, and I
often find it tempting to see and accept that Burma's history as a new
independent nation began with the students' strike of 1936 or the resistance
movement during the Second World War.
That view would make things most attractively simple, but would not be
quite correct. Those events have their places in our history, but they are
not all the history. I do not think I need to say that, but in Burma, twice
run over by war, things have been transcient, and people feel a little too
weary to look far backwards or forwards. Also, books and records have been
either destroyed or scattered, so that it is difficult to reconstruct even the
most recent historical events. My own and the younger generations are
nourished on revolution; during our formative years we have had war and
the struggle for independence; with fire and fury and slogans, we have risen
against the old order purporting to build a new. We often like to think,
therefore, that history began when we began.
Much of that wrong focus is being corrected. Research scholars have
started digging back even into the early Pagan period. The Historical
Commission of which Rector of the University of Rangoon, Dr. Htin Aung, is
chairman, has started its organized collection of material, and when the
writing of the volumes begins the historians will no doubt do their work
with integrity.
v
The Defence Services Historical Research Institute has also built, in a few
short years, a fine collection which will provide abundant material for
writing the history not of the war and the armed forces only but of Burma's
contemporary times in general.
The libraries have also started to build their research collections. The
University Library; the new National Library which has inherited some
valuable private collections; the Economic Research Division at the Uni
versity under the direction of Mr. J. S. Furnivall; and the Rangoon-Hopkins
Centre for international studies have become treasure houses for the historian.
The Burma Research Society too has been actively revived, and its journal
which has established a reputation for scholarship is being published
regularly again, and reprints of the rare old editions are also being brought
out.
The Guardian magazine, five years old, has, with the support of the best
writers and scholars in Burma and abroad, come to playa recognized part in
the recording of Burma's contemporary history. The Guardian newspaper has
also made a reputation for its research articles and factual reporting.
Organizations and individuals are therefore at it zealously, digging,
gathering, writing and evaluating. Coordination may sometimes be wanting,
but after all, the writing of history is a task which calls for individuality.
Agreed history would ring so false.
In tracing the rise of Burma to independent nationhood, I have become
more keenly aware of what should be an obvious fact: that a nation's history
is one whole and though, for the convenience of study, one may divide it
into chapters, in fact the chapters do not begin and end but just flow into
each other even like the waters of a great river. That awareness is a humbling
and at the same time inspiring one. For the awareness ofthe fact that Burma
was not set free only by the slogans which we shouted as young students in
the city's streets strips us of the heroism with which we like to clothe our
selves. Yet the knowledge that what we are doing today will determine the
nation's tomorrow is a great inspiration and gives us an awareness of our
great responsibility. If, therefore, this study helps to awaken in my Burmese
friends an appreciation of our debt to the past and our duty to the future,
and a joy and a pride in our privilege and heritage, then I am amply rewarded.
I have drawn largely, almost solely, on Burmese sources for my material,
and have also been able to interview Burmese leaders who have had a hand
in the making of history. Those are firsthand sources which would not be so
easily accessible to foreign scholars to whom, therefore, this study may be of
some special value.
I have rather liberally mentioned names of people who have played, or are
playing, their parts in national affairs without, I hope, being partial. Some
of them are gone now, some live in forgotten retirement, some wander in the
VI
political wilderness, some lead the nation. I have tried to record briefly about
them while memories are still fresh. I do not judge, for it is not for me to
usurp that privilege of posterity.
Here and there I repeat what I have written in an earlier book, Burma in
the Family of Nations, (Amsterdam, 2nd ed. I957) but in this study the
emphasis is on political and constitutional developments, and the consti
tution itself. I have not, therefore, troubled the reader with references to the
earlier book, but have gone on ahead telling a straight story complete in
itself.
I have not appended a bibliography because I have mentioned the sources,
most of which are in Burmese, in the footnotes. For a remarkably thorough
and up to date bibliography on Burma I may refer the reader to the one
compiled by Dr. F. N. Trager and published last year in New York by the
Institute of Pacific Relations.
It is customary here to express one's gratitude to the people who have
helped. I am sorely tempted to mention the names of those eminent and
learned people who have helped me, but I refrain, for I feel that to do so
would really be to borrow their prestige for this study which can never
hope to match their eminence. But these very few I must mention:
Chief Justice U Chan Tun Aung; Professor J. H. W. Verzijl; Miss
Dorothy Woodman, of the New Statesman, London, who has herself been
engaged for the last few years on the writing of a history of modem Burma;
Dr. Frank N. Trager of the New York University who has already completed
a monumental work on Burma for the Human Relations Area Files, Inc. ; U
Thein Han, Librarian of the University of Rangoon; U Than Htut of the
National Library; Colonel Ba Than of the Defence Services Historical
Research Institute; U Sein Win, editor of the Guardian; my father U Sin of
Mandalay who liked my earlier book very much, though he never did read it,
and was sure it was learned because it was big; my wife Ma Khin My int who
cheerfully produces a baby whenever I produce a book, and invariably does
a better job of it.
55 Barr Street, MAUNGMAUNG
Rangoon,
June, I958.
VII
CONTENTS
Preface v
Part. I. THE STORY OF THE CONSTITUTION
I. ANNEXATION AND BRITISH RULE
I. Death of a Dynasty I
2. Pacification 3
3. Education and Ideas 7
4. YMBA enters Politics 10
5. The GCBA 15
6. Dyarchy 17
7. The 'Saya San' Rebellion 21
8. Separation from India 26
9. The Government of Burma Act 30
10. Young Heralds of a New Age 34
II. The 'Year of Revolution' 38
12. The Coming of War 42
II. WAR AND JAPANESE OCCUPATION
I. The Burma Independence Army
2. Military Administration
3. Independence
4. Resistance
III. LIBERATION AND FULFILMENT
I. Return to Rangoon 68
2. Aung San and the AFPFL 73
3. The Rise of Hope 78
4. Drafting the Constitution 79
5. Fulfilment 85
Part. II. THE CONSTITUTION AT WORK
I. FORM OF STATE
The Choice of Democracy 91
II. FUNDAMENTAL RIGHTS
I. Citizenship 94
2. Equality and Freedom 97
VIII
3. Religious Freedom 98
4. Economic Rights 99
5. Constitutional Remedies 100
III. PEASANTS AND WORKERS
I. Land Nationalization 107
2. Workers log
IV. DIRECTIVE PRINCIPLES OF STATE POLICY
I. 'Pyidawtha' III
2. Economic Planning II3
3. Science and Culture II4
V. THE PRESIDENT
I. The First Citizen II6
2. Powers and Privileges II8
VI. PARLIAMENT
1. The Popular Will 122
2. Law-making 124
3. Powers and Privileges 126
VII. THE UNION GOVERNMENT
1. Political Parties 129
2. Legal Structure 134
3. The Attorney-General 135
4. The Auditor-General 137
5. The Services 137
6. The Defence Services 142
VIII. THE UNION JUDICIARY
I. Independence of the Judiciary
2. Organization and Functions
IX. THE STATES
I. The Choice of Federation 169
2. The Shan State 176
3. The Kachin State 179
4. The Karen State 181
5. The Kayah State 187
6. The Chin Special Division 188
7. New States 19°
8. Secession 193
X. AMENDMENT OF THE CONSTITUTION 195
XI. INTERNATIONAL RELATIONS
I. The Ideal 197
2. The Law 197
3. The Practice 199
IX
XII. GENERAL PROVISIONS
:I. The National Flag 206
2. Official Language 206
3. Foreign Capital 208
4. The Public Service Commission 209
5. Interpretation 209
XIII. TRANSITORY PROVISIONS
:I. State Succession 2XI
2. Provisional Matters 2:12
EPILOG UE 2:14
POSTSCRIPT 2:17
Appendices 2:19
I. Opinion of the Law Officers of the Crown on Annexation of Burma
II. The constitution of Burma under Japanese occupation
III. The Panglong Agreement, :1947
IV. Draft constitution approved by the AFPFL convention, May,
:1947
V. Members of the constitution drafting committees, and staff,
Constituent Assembly
VI. Prime Minister U Nu's motion in the Constituent Assembly to
adopt the constitution September 24, :1947
VII. The Constitution of the Union of Burma, with amendments
VIII. The Constitution Amendment Act, :195:1
IX. Chronology of Events
Index 3:18
x
PART ONE
THE STORY OF THE CONSTITUTION