constitutionl law chapter-31.pdf

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ContentsConstitution of the Union of Myanmar 1947 Chapter III3. Constitution of the Union of Myanmar 1947

3.1 Aung SanAttlee Agreement3.2 The Nature & Sources of the Constitution

3.3The Evolution of Federal Structure

3.3.1 The Drafting of the Federal Provisions3.3.2 Some Practical Difficulties

3.3.3 The Federal Pattern

3.4 The Federal Provisions under the Constitution3.4.1The States and Their Territories3.4.2The State Councils3.4.3The State Governments3.4.4State Secession3.5 The President3.5.1Status3.5.2Qualifications3.5.3Method of Appointment3.5.4Tenure3.5.5 Removal3.5.6Vacancy3.5.7Powers and Function3.6 The Union Government

3.6.1 Composition

3.6.2 Appointment

3.6.3 Removal or Resignation


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3.6.4 The Special Position of the Prime Minister

3.6.5 Collective Responsibility

3.7 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 Sessions3.7.7 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 Judiciary3.8.4 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 Principles3.10 Constitutional Amendment

Key Terms

Assignment Questoins

Short Questions


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CHAPTER III3. Constitution of the Union of Myanmar 1947

3.1 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 Agreementsigned 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 Myanmar1.

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 inApril 1947.

1 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.


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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 ofEnquiry consisting of equal members from Ministerial Myanmar

and from the Frontier Areas2.

In February 1947 U Aung San and the AFPFL (Anti -Fasist

Peoples Freedom League)3

Leaders, attended the Panglong

Conference which was held in the Shan States to ascertain the

wishes to the people of the Frontier Areas4. 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). Fortunatelyagreement was reached on the 12

thFebruary and the Chins,

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

2See paragraph 8 of the above Conclusions.

3The 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


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formation of a Unified Myanmar5. 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 and which conducted

investigations on the spot, could report favorably on the formation

of a Federal Union in April 1947

6

.

Also, in April, country wide election for the Constituent Assembly

where held and the majority of seats were won by the AFPFL.

5The 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.6

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.


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In May, 1947, the AFPFL held a Convention at the Jubilee Hall in

Yangon where a 111 Member Committee was appointed todraw up the first draft of the Constitution. The Committee worked

night and day and on May 23rd

.1947, the draft was produced and

adopted.7

In the meantime, U Chan Htoon, an able lawyer, had been

appointed Constitutional Adviser8. In April 1947, U Chan Htoon

went to India to consult Sir B. N. Rau, Indias constitutional

adviser. According to Sir Benegal Rau9

the first draft of theConstitution was then prepared in India and U Chan Htoon took it

back with him to Yangon in May.10

This draft is apparently

different from the draft prepared by the AFPFL Convention

referred to above.

7For a re-print of this draft see Appendix IV of Dr. Maung Maungs Burmas Constitution.

8After Independence in 1948. U Chan Htoon was appointed as Attorney General and served

9 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

443-46110

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.


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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 15th

September. On the 24th

September, 1947, the Constituent

Assembly adopted the Constitution with the provision that it

would come into operation on such date as the provisionalPresident might announce by proclamation. On December 10

th

1947, the parliament of the United Kingdom passed the Burma

Independence Act, recognizing Burma (Myanmar) as an

independent country with effect from January 4th

1948. Thus, this

date was proclaimed as the date of the commencement of the

Constitution.


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It should however be noted that although the Constitution was

adopted by the Constituent Assembly on 24th

September 1947.

Some amendments were apparently made between that date and

the 4th

January 1948. Thus, section 140 was amended on January

3rd

1948, on the even of Independence and the consultationclauses in respect of the appointment of the Chief Justice of the

Union and the other Judges of the Supreme Court and the HighCourt were deleted

11.

3.2 The Nature & Sources of the Constitution11

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.


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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 one12

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 ofOath of Affirmation to be taken bya person who has been chosen as a member of the Chamber of

Deputies or the Chamber of Nationalities. The Second Schedulelays 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 isthat 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

12The 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 areseveral 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 ofthe sections of the present Constitution are obviously related or

inspired by some of the sections of the Government of Burma

Act.13

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 alsoa known fact that Sir Benegal Rau himself came over to Yangon

to give advice on the final draft14

. 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.

13The 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.14

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 theConstitution 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 thepowers 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 Constitutionand 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 athing 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 bythis 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 beadopted? 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.15

15 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 BurmasMyanmars Constitution. In fact over the last thirteen yearssince 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 Constitutionmembers must refrain from speaking against the candidates in any

detail. This is because Judges must have untarnished names andthe confidence which people have in them must be complete.

16

3.3 The Evolution of the Federal Structure The Necessity of Federation 16

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 EnquiryCommittee 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 necessary17

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 wasfound 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.

17See: 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 self-

sufficiency:

(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 tobe 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 ofcertain matters.

(Autonomous State)

The third status was that of a National Area. It was to beaccorded 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 toassist 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 self-

sufficiency. Moreover, in the case of the Karennis they did not

even have a fairly large population. The status of National Areawas 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 1/10th

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 andhistorical 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 24th

September 1947. No doubt

the above provisions would have secured a stricter Federal

Structure but practical difficulties had to be considered by theconstitution 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.18

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.19

At the sametime it was clear that the formation of a Unitary State would not

be possible. The minority group in Myanmar desired a federation.

18See Constituent Assembly Proceedings. Vol. 2 No.5. Aug 4. 1947, p. 133 Government Printing

Press Yangon.19

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, whichwas 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 tobe appointed by the President (in consultation with the StateCouncil) 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 StateLegislature. It will have powers to pass Bills coming under the

State Legislative List. In other words, what is called thereserve of powers will be within the Union Government.

(5) The State Executive the State Government) is toconsist of the Head of State and a Cabinet will be selected frommembers 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. 2221 consist of the States and all theterritories of the Union of Myanmar not forming part of any

State. The latter territories therefore consisted of what ispopularly called Myanmar proper and also territories like theAraken Division the Chin Hills Special Division and the

Kawthulay Region.20

The interesting feature in the Constitution therefore is that while

these territories together form a unit of the Union of Myanmarthey do not form State. Therefore there are no separate organsfor these territories. The Union Government and the Union

Parliament are also Executive and the Legislature respectively for

these territories.21

20As 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. 21

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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3.4.1The States and Their TerritoriesAt 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 wasapparently 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).

3.4.2The 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 wasstipulated 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) 25 members for the Shan State (2) 7 members for the Kachin State; (3) 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 asallocated in the second schedule of the Constitution. The second

Schedule in turn made the following allocation to the State.

(a) 25 seats to be allocated to the Shan States: (b) 12seats to the Kachin State (c) 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 Statesamong themselves.

22Thus the Saophas alone could be elected to

22This 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, Bawlakeand 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 StateCouncils, 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.23

Such Bills passed by them are to be

presented to the President for signature and promulgation24

is to

sign the Bill within one month of presentation .If he feels that it is

repugnant to the provisions of the Constitution, the SupremeCourt 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 decidesin 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.

23 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 moreState 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.24

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.

3.4.3The 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 consulationwith the State Council concerned and the appointment is to be

made by the President.25

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

25After 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 aState 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 itsinvestigations 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 haveto be carefully limited and regulated.

26

26See 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 AutonomousState, Subject to certain safeguards. Later although thisclassification 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 inthe constitution or by Act of Parliament every State shall have the

right to secede from the Union. This right is subject to theconditions laid down in the other sections following it. Then in

section 178 it is otherwise expressly provided that Chapter Xof 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 futuremust therefore inserverably linked with that of the Union.

27

27 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, 4th

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 tothat 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 ofmembers representing the Union and the State concerned.


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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 leftMyanmar. 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.


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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 Myanmarleaders 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.


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3.5.1 Status - Under section 45 of the Constitution, the President shall takeprecedence over all other persons throughout the Union. Thusthe President is not designated as Head ofState. This provisionis 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

761 Every citizen who has completed the age of twenty one

years and who is not placed under any disability or incapacity bythe Constitution or by law shall be eligible for membership of the

Parliament. The disabilities placed under the Constitution forelection 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


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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 isnot 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


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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 Constitutionof 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


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46

regulations regarding the election of the President are to be found

in the President Elections Act 194928

. 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

29

and theProvincial 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.

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

28The 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 inrespect 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

29The late constitution of Pakistan contains provision for only a unicameral legislature and is called

the National Assembly.


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provisions regarding the Union President are similar to that of the

President of Eire there is this essential difference in the method of

election30

.

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 thirdreason was that if a President was to be elected directly by thepeople 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

30This difference is important when one has to consider the behind the limitation of powers of the

President.31

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


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3.5.4 Tenure - Under section 48(1) the term of office for a President is five yearsand 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 sameprovisions existed in the constitution of the Fourth French

Republic (Article 29) and the late Constitution of Pakistan (Article33). It is however different from that of the Indian Constitution

which imposes no limit to re-eligibility (Article 57).


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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 bynot less than 1/4

thof 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 2/3rd

of the total membership of theinvestigating chamber or the chamber that caused theinvestigation is necessary. Only through this process can be

President 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.


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If should be noted that the phrase cause to be investigatedseems 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 noPresident 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,


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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 December1957, 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 4th

1958.33

Fortunately, however, the President arrived back in Yangon in

time.

32Apparently 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.


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3.5.7Powers 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 andby law.


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Then there comes section 59 the first part of which states tat

subject to the provisions of this Constitution the executiveauthority 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 inthe 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 constitutionway that the executive power shall be vested in the President inthe 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


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with the Constitution thus delimiting the scope of powers given to

him.

The Myanmar constitution also makes it obligatory on thePresident to exercise or perform the powers and functions

conferred on him only on the advice of the Union Governmentexcept 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 notexpressly 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 advisethe President. Even then it is generally accepted that the words


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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 onlyon the advice of the Union government.

(b) powers or functions exercisable or performable in hisdiscretion.

(c) powers or functions exercisable or performable on theadvice or nomination of or on receipt of any communication fromany other person or body.

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


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The phrase any other person or body in clause c above isgenerally 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, thequestion 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 discretionarypowers of the President. The problem is really of a two foldnature namely: (1) Whether the president can entirely exclude the


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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 convictedan 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.


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(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 discretionrefer a disputed question as to whether a bill is Money bill to a

Committee of Privileges, on the request of the Chamber ofNationalities for such a reference.

(4) Under section 143(6) when a charge is made againstany judge of the Supreme Court in any Chamber of Parliament

and if the President does not wish to sit and the Special Tribunalwhich 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 mayappoint any person to act as a judge of the High Court, and such

appointment is to be revoked by the President in his discretion.


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(6) Under section 157, 170(1), 180(6) and 186(1) thePresident in his discretion may refer any bill passed by the Statesand 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 6enumerated above.

35

35Under 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


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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 discretionis 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 discretionand not the phrase in his absolute discretion as in theConstitution of Eire. Moreover, the phrase is weaker than the

phrase in his individual judgment which is also to be found inthe Government of Myanmar Act 1935. The latter phrase was

used in that Act in contradistinction to the phrase in hisdiscretion.

36 see Maung Maung Burmas Constitution p. 120


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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 expresslyused. 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 ordissolved 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


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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 ofthe Prime Minister although the words in his discretion may beabsent.

37Assuming 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 alreadythere. However this does not preclude the advisability of the

President consulting the more important Minister some of whomany 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

37This 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.


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the power to refuse in his absolute discretion This phrase isabsent 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 howeversubmitted that this right is in fact a power conferred on the

President, and as the words in his discretion are absent. It is tobe 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


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right to grant mercy. It is always exercised on the advice theHome 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

38The Home secretary in England combines most of the functions of the Home Minister and the

Judical Minister in Myanmar.


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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 inhis discretion are absent, and also as the opinion of the AttorneyGeneral (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

39An 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 hadnot 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 curaebut 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 .


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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. Muchwould 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

government40

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


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

is another matter.


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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.42

The Union Government consists of the prime

Ministers43

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

41Perhaps 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 thePakistan Constitution (similar to s.61(1) of the Myanmar constitution ) to Art.87 of the Indian

Constitution. where the wording is quite different.42

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. 12043

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.


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not define what a member of the Union Government means butit 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 anon 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


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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.Oinsurrections 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 nonmembers of Parliament, with the exception of the Ministers for the

States.45

General Ne Win was made the Prime Minister and he

picked his Ministers from non-politicians46

45

This is because the Constitution requires the Ministers for the States who are also the Heads of theStates 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.46

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 aday 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.


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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 isthus 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 hisdirection.

47

47See Art 37(3) of the late Constitution of Parkistan


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Regarding the other members of the Government, thePresident 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 thepleasure 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

48See for example the Irish Constitution Art 13(1) where the approval of the popular chamber is

required.


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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 PrimeMinister so advises.

49

As far as resignation is concerned the right of resignation isunfettered 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

49This 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.


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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 theirsuccessors have been appointed (s. 120)


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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 infact 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 theAttorney-General in the same way as a Minister (s. 126). The

Attorney-General also has to resign when the Prime Ministerresigns.

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


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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 noexpress 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 collectiveresponsibility 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 decisionhas been taken by the Cabinet. Every Cabinet Minister must not

only vote for it in Parliament. But also defend it outside


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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 severalother Minister who opposed him in the Cabinet up to one day

before the meeting of the emergency session of the Chamber i.e.

4th

June 1958 on the nest day (4th

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


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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 theConstitution 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 councilconcerned 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,51

it would be against the spirit of the Constitution for

50 For this view see Dr. Maung Maung Burmas constitution p. 135

51See 1958. B.L.R. (S.C) p. 81


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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. Thisprinciple has also been followed in the other Constitutions like


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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 intentionis 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.

52In 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.


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3.7.1 Bicameralism and the Composition The legislature in Myanmar is a Bicameral legislature. In

pro

constitutionl law chapter-31.pdf

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