4.1.3

PREVIEW

Where should the authority of a government come from?

A constitution is the highest law within a country. It describes the structure and powers of each of the three branches of government: legislative, executive and judicial. It also describes the process of how the government makes, implements and enforces laws. A constitution may also specify the fundamental rights and fundamental freedoms of legal citizens. 

A constitution may have the following sections:

• The preamble that describes the history of the country and the institutions, beliefs and values that the writers of the constitution want to promote.
• The Bill of Rights that lists the fundamental rights of legal citizens and statements about the limits of government power.
• The section “Institutions and Offices of Government” describes the structure of the government as well as the powers and responsibilities of government institutions.
• The section “Amendments” describes the rules that must be followed to amend the constitution. 

The constitution is the highest law in a country, therefore other laws in that country cannot contradict it. If other laws contradict the constitution, those laws are unconstitutional. 

REFLECTION/DISCUSSION

Should there only be a national constitution for a whole country, or should regions within the country also have their own constitutions?

Educator’s notes 

Note that the 2008 Constitution is legally binding for the whole territory of Myanmar, including all Regions, States, Self-Administrative Zones and Self-Administrative Regions. The 2008 Constitution does not establish a clear right for sub-national governments to adopt their own constitutions.

However, there have been several attempts at drafting and adopting additional constitutions. During the military rule by the State Law and Order Council (SLORC) and the State Peace and Development Council (SPDC), democracy activists, exiled politicians, and other actors drafted an alternative constitution. Several ethnic-based armed groups established Constitution Drafting Committees in the past, and diverse actors in Tanintharyi Region have also attempted to create a Tanintharyi Nationalities State Constitution (Ohn Mar Zin & Zulueta-Fülscher 2018).

FOCUS ON MYANMAR: 

history of Myanmar constitutions

Since its independence, Myanmar has had two prior constitutions. These two constitutions were abolished when the military took control in 1962 and in 1988. Myanmar did not have a constitution from 1962 to 1974 and 1988 to 2008. The current constitution was adopted in 2008. 

The Constitution of the Union of Burma (1947)

Myanmar’s first constitution was drafted in May 1947, shortly before independence. General Aung San led the 75-member drafting committee and he also briefed Parliament about the constitution. The constitution was adopted on September 24, 1947. It was in force from 1948 to 1962, when a military coup led by General Ne Win replaced the government.

The Constitution of the Socialist Republic of the Union of Burma (1974)

Myanmar’s second constitution was drafted by the Burma Socialist Programme Party. It was adopted through a referendum on January 3, 1974. The constitution was designed to build a socialist democratic social order and a socialist economic system that was called ‘The Burmese Way to Socialism.’ The drafting committee was led by President U San Yu and had 97 members. 

In 1988 Myanmar was one of the poorest countries in Southeast Asia and one of the least developed countries in the world. This led to a nationwide popular uprising in 1988 that caused the government to leave power during a military coup in September 1988. At that time, the 1974 Constitution was abolished.

The Constitution of the Republic of the Union of Myanmar (2008)

After a 13-year discussion, from 1993-2006, the military government organised a national convention in 2007 to draft a new constitution. According to a government announcement, over 1,000 representatives joined this convention, including representatives from various political parties and States and Regions. However, the National League for Democracy did not participate in any discussions about the new constitution. In October 2007, a 54-member drafting committee was led by Chief Justice U Aung Toe.

A nationwide referendum to adopt the constitution was held on May 10, 2008. Due to Cyclone Nargis, which killed more than 100,000 people a week before the scheduled referendum, voting was postponed to May 24 in seven townships in Ayeyarwady Region and in 40 townships in Yangon Region. The military government adopted the constitution on May 29 and stated that more than 92 percent of the 26 million voters supported it.

REFLECTION/DISCUSSION

Given these issues, do you think the adoption of each of Myanmar’s three constitutions was fair? Why or why not?