Chapter 1

State and Constitution

1. State and Constitution

1.1 Society and the State
A study of any aspect of the state must begin with the definition of
Society because a state is a society politically organized.
A Society may be defined as any association of human beings1.
The fundamental units of the association of the members of a
community may be considered in general as follows:
the family;
professional society (or) Trade Union etc; e.g. club and religious
association.
voluntary association; e.g. club and religious association
On the one hand, associations play an important part in influencing and
determine state action, on the other, many of them could not continue to exist
without the conditions which the agency of the state alone can enforce.

society

politically

organized

association

fundamental units

1
Modern Political Constitution by C.F Strong -5th Edition, London,1960P.2.
 2

community

professional society

Trade Union

religious association

voluntary association

agency of the state

1.2 Law and the State

All associations make rules and regulations for their conduct, and when
men are associated politically these rules and regulations are called laws, the
power to make these being the prerogative of the state.
So, Prof. Maciver defines: "a state is the fundamental association for the
maintenance and development of social order, and to this end its central
institution is endowed with the united power of the community."
Prof. Hetherington says: "the state is the institution or set of institutions
which, in order to secure certain elementary common purposes and conditions
of life, unites under a single authority the inhabitants of a clearly-marked
territorial area".

rules

regulations

prerogative

fundamental association

maintenance

development

central institution

endowed
 3

conditions of life

inhabitants

territorial area
Explanation
United power (or) single authority means the power or authority to make
law.
Holland defines the State as ‚a numerous assemblage of human beings,
generally occupying a certain territory, amongst whom the will of the majority,
or of an ascertainable class of persons, is by the strength of a such a majority,
or class, made to prevail against any of their number who oppose it1‛.
Phillimore says that the State is ‚a people permanently occupying fixed
territory, bound together by common laws, habits and customs into one body
politic, exercising through the medium of an organized government
independent sovereignty and control over all persons and things within the
boundaries, capable of the making war and peace and of entering into all
international relations with communities of the globe2‛.

united power

single authority

numerous
assemblage
the will of the majority
strength
to prevail
oppose

1
Guide to the Study of Constitutional Law, Popular Law Series, and First Series P-1
2
Ibid P.1
 4

permanently occupying
fixed territory
common laws
boundaries
war and peace
sovereignty
international relations
the globe
Bluntschli says that ‚The state is a combination or association of men in
the form of government and governed, on a definite territory, united together
into moral organized masculine personality, or, the state is the politically
organized national person of a definite country1‛.
Woodrow Wilson said that the State is a people organized for law within
a definite territory.
The objects of the law are the things necessary to which rights are held
and duties imposed. According to Westlake, "the duties and rights of the states
are the duties and rights of man who compose them."
combination
definite territory
masculine personality
national person
imposed
duties and rights
Article I of the Montevideo Convention of 1933 on the rights and duties
of states enumerates the following characteristics of the state as a person of
International law:

1
Ibid P.2
 5

(i.) a permanent population;

(ii.) a defined territory;
(iii.) a Government;
(iv.) a capacity to enter into relations with other states
The essential requisites of a State are:-
(1) population;
(2) a definite place of residence or territory;
(3) an organization unifying the people, or government; and
(4) supremacy in internal matters and independence of
external control, or sovereignty.
As indeed, the essence of a state, then, as distinct from all other forms of
association, is the obedience of its members to the law. The state being a
territorial society divided into government and governed, we may quote a
definition of law as "the general body of rules which are addressed by the rulers
of a political society to the members of that society which are generally
obeyed."
enumerates
characteristics of the state
International law
permanent population
defined territory
essential requisites
place of residence
supremacy
internal matters
independence
external control
 6

distinct
forms of association
obedience
government
governed
definition of law
body of rules
rulers
political society
obeyed

1.3 Sovereignty and the State

Etymologically the word "Sovereignty" means merely superiority, but
when applies to the state it means superiority of a special kind, such
superiority, that is to say, as applies law-issuing power1
By the ‚sovereignty of State‛ is meant the supreme power of the State
over individuals, or, as Prof. Burgess said that ‚the original, absolute,
unlimited power over the individual subject and over all association of
subject‛. The sovereignty of State is absolute and unlimited. The absoluteness
of the sovereignty of the State implies:-
(a) that within the State there is no power superior to it,
(b) that outside the state there is no power superior to it.2
In seeking to find in any state where the sovereign power lies:-
(i.) the titular head of the state (e.g. in United Kingdom the Queen,
in France the president of the Republic)

1
Modern Political Constitution, P.5
2
Guide to the Study of Constitutional Law P-3
 7

(ii.) the legal sovereign-(e.g. in United Kingdom the Queen in

parliament)
(iii.) the political or constitutional sovereign-(e.g. in the modern
constitutional state found in the electorate (or) voting public)
Actually, the state must have to make laws and enforce by all the means
of coercion, it cares to employ. This power is called sovereignty.
Superiority
law-issuing power
sovereignty of State
supreme power
individuals
absolute
unlimited power

titular head

legal sovereign

constitutional sovereign

the modern constitutional state

electorate

voting

enforce

means of coercion

This is a highly controversial term. We have to define it in double

aspect:-
Internal and external
Internally, it means the supremacy of a person or body of persons in the
state over the individuals within the area of its jurisdiction. Externally, it means
 8

the absolute independence of one state as a whole with reference to all other
states.1
State power is also characterized, by its supremacy (sovereignty) and
universality. The sovereignty of the state is the judicial expression of the
independence of state power, its independence from any other power either
within the country of beyond its borders. State power is universal, and extends
to all members of the given society (the citizens living on the territory of a
given country, stateless persons and foreign nationals, and also citizens of the
given country who are abroad.)2
At the international level, state sovereignty manifests itself in the equal
rights of states, regardless of the size of their territory, their population or other
factors.

controversial term

double aspect

jurisdiction

absolute independence

reference
supremacy
universality
judicial expression
state power
borders

stateless persons

foreign national

1
Modern Political Constitution, P.5
2
Constitutional law and political Institutions by Veniamin CHIRKIN P. 41
 9

international level
manifests

1.4 Government and the State

In order to make and enforce laws the state must have a supreme
authority. Generally, this called the Government. Government is the state's
machinery without it the state could not exist.
Government is organized force. Government shall be formed by law (by
constitution). Government is, therefore, " that organization in which is vested
the right to exercise sovereign power." Here, Government represents the State.
Government, in the broad sense, is something bigger than a special body of
minister (cabinet).
Cabinet

enforce laws

supreme authority
organization
vested
sovereign power
represents
Government is charged with the maintenance of the peace and security
of the state within and without. It must, therefore have:
(i.) military power (the control of armed forces)
(ii.) legislative power (the means of making laws)
(iii.) financial power (the ability to extract sufficient money from
the community to defray the cost of defending the state and of
enforcing the law it makes on the state's behalf)1

1
Modern Political Constitution P. 6
 10

The form of Government and its functions will be differed as different

constitutions on the application of different constitutional theories and
principles.
Any how, a state must have legislative branch to use the legislative
power, executive branch to use the executive power, executive branch to use
the executive power and judicial branch to use the judicial power which are
rooted and flowed from the state power i.e. sovereign power of the state. So it
may call the three departments of government. 1

Maintenance

peace and security

military power

armed forces

legislative power

making laws

financial power

defray
functions
constitutions
application

constitutional theories

principles
legislative branch
judicial power
sovereign power
departments of government

1
Ibid P.6.
 11

1.4.1 The Legislature

The three branches of the state power mentioned above all play their
part in the exercise of sovereign power in a modern state. The legislature is that
concerned with the making of laws, in so far as the law requires statutory force.
In a simple sense, a legislature makes laws; the Oxford English
dictionary defines a legislature as ‚a body of persons invested with the power
of making the law of a country or state."
Although legislatures are known primarily as lawmaking bodies, it is
important to recognize that these institutions have many other important
responsibilities.
Legislatures operate under a system of collective decision making
Legislatures adopt policies and make laws through the process of deliberation.
mentioned
state power
sovereign power
legislature
modern state
making of laws

invested

primarily
lawmaking bodies
to recognize
institutions
important responsibilities
operate
collective decision
adopt
 12

policies
deliberation
Nelson Polsby, a scholar of U.S congress classified the legislature into
two basic types: arena legislatures and transformative legislatures:
(i.) Arena legislatures are forms for discussion of ideas and policies;
(ii.) Transformative legislatures actively translate ideas into laws.
The British Parliament is a good example of an arena legislature. The
U.S congress is a transformative legislature.
In the British system, the executive prime minister and the legislature
Parliament are linked and are necessarily controlled by the same party. As a
result, there is less need or opportunity for transformative activity in the area of
policymaking.

Congress

classified

arena legislatures

transformative legislatures

discussion
translate

executive prime minister

legislature Parliament

controlled
opportunity

policymaking

The U.S Congress, on the other hand, is a much more activist

legislature, Conflict, compromise, and individualism can all be found in the
U.S legislature.
 13

The legislative power of the United State is vested by the constitution in

a congress, which consist of two houses, a Senate and a House of
Representatives. The Senate, or Upper House, represents the states, the House
of Representatives the People. The Senate represents the federal principle of
government; the House of Representatives, the nation.
The very characteristic of a legislature is its intrinsic link to the citizens
of the state-representation. As John Stuart Mill wrote in 1862, in a
representative democracy the legislature acts as the eyes, ears, and voice of the
people.

activist legislature

conflict

compromise

individualism

congress

Senate
House of Representatives
federal principle

intrinsic link

state-representation

representative democracy

legislature acts

voice of the people

In modern constitutional state the legislative power is vested in Hluttaw

(Myanmar), Parliament, Congress, Soviet, National Assembly etc. which may
be elected by the people.
 14

Note and explanation: The words ‚Parliament‛, the word ‘Congress’

and the word ‘Soviet’.
James Q. Wilson has pointed out the root of the word parliament is the
French word ‘Parler’ i.e. to take, the root of the word congress is Latin
‘Congresses’ i.e. to come together or assemble. Similarly, in Russia, the word
‘Soviet’ means council.1
By the way, according to C.F. Strong, an authentic author of
Constitutional Law, the ‘Legislature’ is, of greater importance than the
Executive which administer the law, or the Judiciary which punishes its
transgressors.

modern constitutional state

legislative power
Hluttaw
Parliament
Congress
National Assembly
elected
explanation
pointed out
assemble
administer
transgressors

1
The Role of the Legislature in a Democracy by Norman ORNSTEIN, P.3 and 5
 15

1.4.2 The Executive

The term Executive is sometimes to designate merely the chief minister
(as, for example, the president in the U.S) sometimes to include the whole body
of public servants, civil and military.
The word ‘Executive’ is to mean the head of the government together
with his ministers. In modern practice the executive formulates the bulk of it,
and then presents it for approval to the legislature.
Nowadays, there are three types of republics. They are:-
(i.) Monarchical Republic,
(ii.) Parliamentary Republic,
(iii.) Presidential Republic.
Executive
to designate
chief ministerr

public servants

civil and military

formulates

approval

types of republics

Monarchical Republic

Parliamentary Republic

Presidential Republic
 16

1.4.2.1 Monarchial Republic

Monarchial system is still living in some parts of the world as, for
example, United Kingdom (U.K), Thailand, Japan, Spain, and Republic of
Middle East.
Form of estate or form of republic can differ concerns their relationship
to the overall political system of which they are a part. For instance, a
legislature may be part of either a parliamentary system or a system of
separated powers usually known as a presidential system.

Monarchial system

form of republic
relationship
political system
parliamentary system
system of separated powers

presidential system

1.4.2.2 Parliamentary Republic

In a parliamentary system (or) parliamentary republic the executive and
the leaders of the administrative bureaucracies are chosen from and are
accountable to the majority in parliament. In the British system the cabinet is
the head of the executive as well as the directing power in the legislature. The
cabinet is chosen from the political party which commends the majority in the
House of Commons. The head of cabinet, the prime minister, is appointed by
the king and after his appointment he selects his ministers who also are
technically appointed by the king. The cabinet is representative of both the
House of Lord and House of Commons; but is responsible only to the House of
Commons. As a rule it includes the head of the chief executive departments of
 17

the government. Indirectly it may be said that the cabinet is chosen by the
House of Commons for, although the prime minister can exercise his own will
in the matter of choice, he is bound to select the chief men of the political party
in power. The cabinet is jointly responsible to the House of Commons for the
action of its individual members and, in the case of defeat by the House, the
cabinet must resign. The cabinet, moreover, has the power, through the Prime
Minister, to advise the king to dissolve the House of Commons.1

the executive
leaders
administrative bureaucracies
accountable
the majority
the cabinet
head of the executive
political party
the prime minister
appointed
representative
House of Lord
House of Commons
defeat
resign
to advise
dissolve

1
Guide to the study of Constitutional Law, Popular Law Series, and FirstSeries P-29
 18

1.4.2.3 Presidential Republic

Where separation of powers is the rules as in a presidential system (or)
presidential republic (e.g. United States), the executive and the cabinet are
entirely separate from the legislative body. In the United States, the head of
executive, the President, is not responsible to the legislature. The president had
no power to compel the congress to pass any law. By party system in the
United States, the president usually belongs to the same political party as the
majority in Congress for the time being. But although the party organization in
the United States is the strongest in the world, the actual dividing lines between
the parties in matters of political opinion or proposed legislation are so
indistinct that the party similarity of president and congress is no guarantee that
the president’s view were prevail.1
No one (an exception is the vice-president in the U.S case) can be a
member of both the executive and the legislative branch.

separation of powers

presidential system

entirely separate
the legislative body
the head of executive
to compel
political opinion
indistinct
guarantee
prevail

1
Guide to the study of Constitutional Law, Popular Law Series, and FirstSeries P-32
 19

1.4.3 The Judiciary

The judiciary is the department concerned with the infliction of penalties
upon those who infringe the law which may be either passed in the form of
statutes by the legislature or permitted by it to exist.
The judiciary always consists of a body of judges acting individually or
in group at the centre, or in outlaying parts, of the state. The powers of judges
greatly vary from one state to another. Judicial systems are differed in common
law family, civil law family, and socialist law family.
In some cases, as in the United Kingdom, the judges are bound to apply
any law passed by the legislature, even though such a law should destroy all
precedent decisions of the court. In others, as in the United States, a supreme
court of the judges can frequently override the enactment of the legislature by
refusing to apply the laws in particular cases on the ground that it is
constitutionality beyond the power of the legislature to enact them.

The judiciary
Infliction
Penalties
form of statutes
powers of judges
common law family
civil law family
socialist law family
destroy
precedent decisions
supreme court
enactment
 20

refusing
to enact

1.5 Definition of the Constitution

The modern constitutional state is necessarily nationalist in background
and democratic in tendency. In the making of a constitutional state the sense of
national unity may at first be concerned rather to establish the independence of
the group than to achieve the liberty of its individual members, but ultimately it
generates the driving power for the attainment of popular rights.

modern constitutional state

nationalist
democratic
unity
to achieve
liberty
ultimately
attainment
popular rights
The objects of a constitution are-
(i.) to limit the arbitrary action of the government;
(ii.) to guarantee the rights of the governed; and
(iii.) to define the operation of the sovereign power.1
Then, concerning with the definition of constitution, world
constitutionalists expressed and colored the state constitution as follows-
*Constitution is the pillar of the State.

1
. Modern Political Constitution P.10
 21

*Constitution is the mirror of the State.

*Constitution is the basic law of all laws of the land.
Some states in the world named and called their state constitutions as
(i.) basic Law (or)
(ii.) fundamental Law (or)
(iii.) State Law
Load Bryce defined a constitution as ‚a frame of political society,
organized through and by law, that is to say, one in which law established
permanent institutions with recognized functions and definite rights.1
constitutionalists
expressed
arbitrary action
to guarantee
operation
sovereign power
pillar
mirror
basic law
political society
permanent institutions
functions
definite rights
Explanation (for permanent institution)
Permanent institutions mean the legislative organ, the executive organ
and the judicial organ which are prescribed, mentioned and built in the
constitution.

1
. Ibid , p.9
 22

According to C.F Strong, a true constitution will have the following

facts-
(i.) how the various agencies are organized;
(ii.) what powers is entrusted to those agencies;
(iii.) in what manner such power is to be exercised.1
Explanation (for agencies)
Here, Agencies are legislative organ, executive organ and judicial organ
of the state which are built in the constitution. Its organs, their functions and
powers are definitely arranged.
According to Wade and Phillips, Constitutional Law means the rules
which regulate the structure of the principal organs of government and their
relationship to each other, and determine their principal functions. These rules
consist both of legal rules in the strict sense and usages, commonly called
conventions, which without being enacted are accepted as binding by all who
are concerned in government.2
legislative organ
executive organ
judicial organ
prescribed
various agencies
regulate
principal organs
legal rules
conventions
binding

1
. Ibid, P. 10
2
Constitution Law by E. C. S Wade and G.G Philips P.2 and 3
 23

1.5.1 Concept and the meaning of Constitutional Law

Constitution implies any regular form or system of government. Law
implies a binding rule of action to which men are obliged to make their conduct
comfortable.
A constitution lays down the general and the fundamental principle on
which the power as of a state are to be exercised. In this sense, constitutional
law is often described as the fundamental law of the Land. The main object is
to define the orbit of the sovereignty.
When we speak of constitutional law, we speak of that law which
comprises the collection of rules which establish and regulate or govern the
country.
It includes all rules which define the members of the sovereign power,
all rules, which regulate the relations of such members to each other, or which
the sovereign power or the members thereof exercise their authority.
regular form
system of government
rule of action
fundamental principle
described
law of the Land
orbit of the sovereignty
comprises
collection of rules
sovereign power
24
 Chapter 2

Classification of Constitution

2. Classification of Constitution
According to C.F Strong, Constitution can be classified in five ways.
(i.) classified by nature of State;
(ii.) classified by nature of Constitution;
(iii.) classified by nature of Legislature;
(iv.) classified by nature of Executive;
(v.) classified by nature of Judiciary.
State
Constitution
Legislature
Executive
Judiciary

2.1 Nature of State

We have studied in Chapter (1) that the state is one of the main elements
in the political system of society, its most important political institution.
The law school has laid the main emphasis on the state as a judicial
person, as a system of legal relations.
The sociological school of thought describes the state as the organ
centralizing the life of the nation, as a society in which there are the rulers and
the ruled.
 17

The western authors of Constitutional Law define the state as a socio

political entity which fulfils the same functions as other public institutions
differing from them only in that it fulfills them with the help of a more
specialized apparatus.
After studying the concept, essence and function of the state, we must
know about the features and form of the state.
The State is characterized by a number of features which distinguish it,
on the one hand, from the tribal organization of society and, on the other, from
other institutions existing in a state organized society.
(Example: form political parties, trade-Unions, religious organizations etc.)
An important feature of the state is the division of the population into
territorial administrative unite, and the government of people on the territorial
principle.
main elements
political system
political institution
judicial person
legal relations

sociological

describe

the rulers

the ruled

fulfill
functions
public institutions
features
distinguish
 18

tribal

political parties

religious organizations

trade-Unions

population

administrative unite

territorial principle

Form of State
If the essence, content and functions of the state define the nature of
state power, the form indicates how the state power is organized and exercised.
The form of the state is its outward structure as determined by the
content (by the Constitution). The form of the state is often regarded as
composed of three elements:-
(i.) the form of government (republican or monarchical)
(ii.) the state structure (unitary of federal)
(iii.) the form of State regime1
The forms of the state in different countries have specific characteristics.
As for example, in United Kingdom (Great Britain), it is a parliamentary
Unitary State, in the United State of America, it is a presidential federal State.
The former Union of Soviet Socialist Republicis created on the basic of the
voluntary Union of equal subjects of the federation and a single system of
Soviet as the organ of State power.
The territorial organization of state power is fundamental to the form of
the State structure. There are two basic form of State organization:

1
. Constitutional Law and Political Instructions by VemiaminChirkin, P.44
 19

1. Unitary
2. Federal
state power
indicates
composed

form of government

state structure

form of State regime

specific characteristics

Unitary State

presidential federal State

federation
State structure
Unitary
Federal

2.1.1 Unitary State

A unitary state is one in which ‚the habitual exercises of supreme
legislative authority by one central power.‛1
A unitary state is one single whole. It is composed of territorial
administrative units (a simple unitary state) but may sometimes include
autonomous formations (a complex unitary state). This autonomy may be
political (Legislative) and administrative (without the right to legislate)2.

1
. Modern Political Constitution P. 76
2
Constitutional law & political institutions P. 46
 20

People’s Republic of China is a unitary state. We can study the role of

autonomous province, autonomous prefecture and national area in China
Constitution.
Republic of Indonesia is also a unitary state. We can study the self
governing units of that state.

unitary state

habitual exercises

supreme legislative authority

central power
territorial administrative units

simple unitary state

autonomous formations

complex unitary state

right to legislate

autonomous province

autonomous prefecture

The essence of a unitary state is that the sovereignty is undivided, or in

other words, that the powers of the central government are unrestricted, for the
constitution of a unitary state does not admit of any other law-making body
than the central one. It does not mean the absence of subsidiary law-making
bodes, but it does mean that they exist and can be abolished at the discretion of
the central authority.
Theoretically, the two essential qualities of a unitary state may therefore
be said to be:
(i.) the supremacy of the central parliament and
(ii.) the absence of subsidiary sovereign bodies.
 21

Every unitary has the supremacy of the central parliament. So the

unitary state may be rigid constitution and there are certain sorts of acts which
constitution does not allow the ordinary central legislature to pass except under
special conditions. In a unitary state, there is only one kind of legislature,
which is always and absolutely supreme.
The absence of subsidiary sovereign bodies is the second mark of a
unitary state. The distinction between subsidiary law making bodies and
subsidiary sovereign bodies is the distinction between the local authorities in a
unitary state and the state authorities in a federal state.
Example:- United Kingdom, France, Italy, China….etc.

the sovereignty

central government

unrestricted

law-making body

subsidiary
abolish

discretion

central authority

essential qualities

supremacy

central parliament

subsidiary sovereign bodies

rigid constitution

central legislature
special conditions

absolutely supreme
 22

distinction
sovereign bodies
local authorities
federal state

2.1.2 Federal State

Federal state is a political contrivance intended to reconcile notional
unity and power with the maintenance of ‘state rights’ i.e. the legislative
authority is undivided between a central or federal power and similar units,
sometimes called provinces.1
A federal state is a union state. It may be the totality of the states,
provinces and other members of the federation (see United State of America,
Canada) or it may be based upon an alliance of states (see Union of Soviet
Socialist Republic), or upon the autonomy of its component parts. Its
component parts are not territorial administrative units, but state formation.2
to reconcile
intended

political contrivance

maintenance

state rights

legislative authority

undivided

federal power

provinces

union state

1
Modern Political Constitution P.80
2
Constitutional Law & Political Institution, P. 46
 23

alliance of states

autonomy

component parts

2.1.2.1 Variations of the Federal Type

Federalism varies in form place to place and from time to time. As for
example:- United State of America federalism, German federalism and former
Union of Soviet Socialist Republic federalism are differ both in form and
content.
Any how, the indispensable quality of the federal state being distribution
of the powers of government between the federal authority and the federating
units:
There are three ways in which federal state may vary one from another:-
(i.) as to the manner in which the powers are distributed between the
federal and state authorities;
(ii.) as to the nature of authority for preserving the supremacy of the
constitution over the federal and state authorities if they should
come into conflict with one another;
(iii.) as to the means of changing the constitution if such change
should be desired.

indispensable

distribution of the powers

federal authority

federating units

distributed

state authorities
 24

for preserving

conflict

Then the Powers may be distributed in one of two ways:

Either the constitutions states what power the federal authority shall
have and leaves the remainder to the federating units, or it states what powers
the federating units shall possess and leaves the remainder to the federal
authority.
The remainder is generally called the ‚reserve of power‛ see Canada .1
We should study more deeply the distribution of powers, especially in
the field of the distribution of legislative power between the central and
federated States.
Union legislative list, State legislative list, and Concurrent legislative
list are all ready listed prescribed and attached to the text of the respective
Constitutions of the Union of Burma (Myanmar) (1947) India, Malaysia and
Pakistan.
the remainder
possess

federal authority

reserve of power

distribution of powers

legislative power

Union legislative list

State legislative list

Concurrent legislative list

prescribed

1
. Modern Political Constitutions, P. 100.
 25

2.1.2.2 Conditions of Federalism:-

A federal state requires for its formation two conditions;
(i) The lands (states) which from part of a federal state were at some
stage of their existence bound together by close alliance or by
subjection to a common sovereign.
(ii) Essential to the founding of a federal system is the existence of a
very peculiar state of sentiment among the inhabitants of the
countries which is proposed to unite. They must desire union and
must to desire unity.1

The aim of federalism

A federal state is a political contrivance intended to reconcile national
unity and power with the maintenance of state rights. The end aimed at fixes
the essential character of federalism.
All matters which are not primarily of common interest should remain in
the hands of the several states.
formation
existence

close alliance

common sovereign

inhabitants

political contrivance

to reconcile

national unity

state rights

1
. An Introduction to the study of law of the Constitution, P. 140-141
 26

common interest

remain

2.1.2.3 Characteristics of Federalism

National unity can be reconciled with state independence by a division
of powers under a common constitution between the nations on the one hand
and the individual states on the other, it developed federalism:
(i.) the supremacy of the constitution;
(ii.) the distribution among bodies with limited and co-ordinate
authority of the different powers of government;
(iii.) the authority of the courts to act as interpreters of the
Constitution.1
(this characteristic applies only in the case of United State of America)
Note: Supremacy of Constitution is the most important point for even federal
state.
A federal government holes the maintenance of a federal system to be of
primary importance supreme legislative power cannot be safely vested in any
ordinary legislature acting under the constitution. (see the historical
development of legislature in Germany.)
Every legislative assembly existing under a federal constitution is
merely a subordinate law making body, whose laws are of the nature of by-
laws, valid within the authority conferred upon it by the constitution, but
invalid or unconstitutional if they go beyond the limits of such authority.2
Any-how, the distribution of powers is an essential feature of
federalism.

1
. An Introduction to the study of law of the Constitution, P.140-414.
2
. Ibid, P.149-150
 27

Two Kinds of Federal States:

According to L. Wolf Phillips, author of constitutions of modern states,
there are two kinds of federal states.
They are true federal state and quasi federal state (i.e. less federal)
Examples for true federal state are United State of America and for
quasi federal state are Myanmar, Canada, Germany, India etc.

division of powers

individual states

distribution
co-ordinate authority
powers of government

interpreters

supreme legislative power

vested
legislative assembly

the nature of by-laws

valid
invalid

unconstitutional

distribution of powers

quasi federal state

2.2 Nature of Constitution

We can classify the Constitution by studying its nature:
Written Constitution or Unwritten Constitution (Codified or Uncodified)
Rigid Constitution or flexible Constitution
 28

2.2.1 Written Constitution or Unwritten Constitution

A written constitution is one regarded as a document of special sanctity.
A constitution is generally called unwritten one which has grown up on the
basis of custom rather than of written law.1
‘Written’ and ‚unwritten‛ classification may be possible to adopt by
treating it as dealing, first, with the degree of codification, second, with the
degree of written detail; and thirdly, with the origin of the written text
document.
No Constitution will be completely ‘written’ or completely ‘unwritten’,
completely ‘codified’ or completely ‘uncodified’, completely ‘rigid’ or
completely ‘flexible’. The aim will be to establish the degree of the
classificatory attribute.2

Written Constitution

Unwritten Constitution

Rigid Constitution

Flexible Constitution

document

custom

written law

to adopt

codification

uncodified

flexible

rigid

1
Modern Political Constitutions, P.64.
2
Constitution of Modern States (Introduction) by Leslie Wolf-Phillips, P. (XII)
 29

Many Constitutional texts deal only with the skeletal outlines of topics,
leaving the details to be regulated by organic laws or ordinary statutes.
Constitutions of India and Mexico have many articles embodying details
that one usually expects to find in ordinary laws. But, Indonesia provides an
example of what might be called a ‘mini-text’; it displays enough detail to
maintain interest while hardly covering the subject. (Indonesia Constitution has
only 37 articles) Every modern state has its own written constitution.
The United Kingdom is frequently cited as example of an ‘unwritten’
constitution. There is a great deal of statute laws that could properly be
constitutional law, and much of it treats of fundamental instructions in the same
way that a ‘written’ constitution does.
There are statues that deal with the formation of United Kingdom e.g.
Statutes for the limitation of the power of sovereign, for the succession to the
throne and for a regency; other statutes deal with the House of Lords, the
House of Commons and Parliament, with the judiciary, with the armed forces,
with local government, with citizenship and with emergency power.
ordinary statutes
modern state
statute laws
fundamental instructions
limitation
power of sovereign

succession to the throne

regency

House of Lords
House of Commons

Parliament
 30

Judiciary

armed forces

local government,

emergency power

So this surely makes absurd the use of the term ‘Unwritten’ in respect of
British constitutional agreements, anyhow statues listed above are exercised as
British Constitution.
So, British Constitution is, in fact, Statutes part written and uncodified.
Middle Eastern States and Kingdom of Bhutan are normally without
written constitutions.
Herman Finer’s assessment of the value of ‘written’ constitution is as
follows:
At the most, the written constitution is a standard of reference, and it is
valuable only in proportion to its clarity and the extent to which it has not been
altered by interpretation. As no constitution satisfies these conditions for more
than a decade after it has issued from the constituent assembly; the advantage
approaches nil. It is not the writing which safeguards, but obstacles to
amendment.1

constitutional agreements

statues

assessment

reference

proportion

clarity

altered

1
. Modern political constitution, P.(XIII)
 31

interpretation

conditions

constituent assembly

advantage approaches

safeguards

obstacles

amendment

2.2.2 Rigid Constitution or Flexible Constitution

Lord Bryce suggested an alternative approach that would have ‚some
more definite and characteristic test‛ to mark off types of constitutions. His
new classification was ‘rigid’ and flexible. He wants to differentiate the relation
which each constitution bears to the ordinary laws of the state, and to the
ordinary authority which enacts those laws.1
The older type of flexible constitutions has elasticity, because they can
be bent and altered in form while retaining their main features. Constitutions of
newer kind cannot, because their lines are hard and fixed. So, they got the
name of Rigid Constitution.
suggested
alternative approach
definite

to differentiate

bears

ordinary laws

ordinary authority

1
.Modern Political Constitutions. P. (XIII).
 32

enacts

flexible constitutions

main features

A ‘rigid’ constitution is one that needs special procedure for its

amendment: a procedure different from that needed for the amendment of extra
constitutional law. A ‚flexible‛ constitution is one that requires no special
procedure for its amendment.1

A rigid constitution is thought of as a Constitution which, because it

contains legal obstacles, is hard to alter and is seldom altered. (See 1974
Myanmar Constitution Article 194, Latin America and U.S Constitutions)

A flexible constitution is thought of as a constitution which is easy to

alter and is often altered.

Bryce pointed and wrote ‚depend not so much on its from as on the
social and economic forces that stand behind and support it; and if the form of
the Constitution corresponds to the balance of those forces, their support
maintains it unchanged‛2

special procedure

extra

seldom

economic forces

corresponds to the balance

unchanged

amendment

1
-ibid- …………P. (XIV)
2
. Modern Political Constitutions….P. (XV)
 33

support

2.3 Nature of Legislature

The most important machinery in the modern state is the legislature, or

Law-making body. In studying the legislature, we should note about
‘Unicameralism’ and ‘Bicameralism’. ‘Unicameralism means unicameral
system and bicameralism means bicameral system.

Generally, a state constitution or a state structure which has one

Chamber or one Houses for legislature is known as unicameral legislature; and
two chambers or two Houses for legislature is known as bicameral legislature.

Unitary states use the unicameral system and they have only one
chamber each. Bangladesh has a Parliament (which is known as the House of
Nation : China has one Supreme organ the National People’s Congress. Egypt
has People’s Assembly, Singapore has one parliament.

modern state

Law-making body

Unicameralism

Bicameralism

Unicameral system

Bicameral system

Chamber

Unitary states

National People’s Congress

People’s Assembly
 34

Some of the unitary states use the bicameral system and have two
chambers e.g. France has one parliament which consists of National Assembly
and Senate; Japan has one Diet which shall consist of House of Representatives
and House of Councilors; United Kingdom (U.K) has a Parliament and it has
House of Lords and House of Common.

Every Federal state applies the bicameral system and it has two
chambers. e.g. Germany has Parliamentary Council consists of Council of
States and House of the People; Malaysia has a Parliament consist of Senate
and House of Representative; Myanmar 1947 Constitution has a Parliament
consists of Chamber of Nationalities and Chamber of Deputies; U.S.A has a
Congress which shall consists of Senate and House of Representatives;
Pakistan has a Parliament consists of Senate and National Assembly; (Former)
USSR has one Supreme Soviet of the USSR consists of Soviet of the Union
and Soviet of Nationalities etc.
What is far more vital is to observe the ways in which legislatures, and
both the lower and upper houses of the important ones are brought into being,
for this is where the citizen’s contact comes.
Electoral systems and kinds of constituency types of Chamber’s of
legislatures play an important role in the Constitutional law. 1(See also in
chapter V)

National Assembly

Senate

House of Representatives

Council of States

House of the People

1
. Modern Political Constitution -----P. 66-69
 35

Chamber of Nationalities

Chamber of Deputies

House of Lords

House of Common

vital
observe

Electoral systems

2.4 Nature of Executive

The ‘unitary’-‘federal’ classification deals with the distribution of
powers horizontally between the different levels of government. Another
classification which deals with the vertical distribution of powers is within a
government at any level. This is the distinction between constitutions which
provide for a ‚parliamentary-executive;‛ and those which provide for a
‚parliamentary-executive; between those which embody, in some measure, the
separation of the executive, legislative and judicial powers, and those which do
not1.

distribution of powers

vertical
parliamentary-executive
embody
separation
executive
legislative
judicial powers

1
Constitutions of Modern States ----P. (XIX)
 36

2.4.1 Presidential Executive

In the Presidential Republics which those used the Presidential System,
president is the head of the state and also head of the executive. He is the real
head of the state and also head of the executive. Executive power is vested in a
president of the state.1
According to the American Constitution, the president of the United
States is the independent executive. The essential of good government is a
vigorous head of executive. To make the executive independent from
interference, the American adopted the theory of the separation of powers.
They established an independent legislature, an independent executive and an
independent judiciary. His powers are definitely limited by the Constitution.
He appoints his own minister and can remove them. His ministers are not
members of the legislature nor are he and his ministers responsible to the
legislature for their acts. The President is elected by the people.2

Presidential Republics

Presidential System

head of the state

head of the executive

Executive Power
president of the state
independent executive
interference
independent legislature
independent judiciary
remove

1
. U. S Constitution. Art. 2. Section 1(1)
2
Guide to the Study of Constitutional Law, Popular Law Series, and First Series P-30
 37

responsible
elected

2.4.2 Parliamentary Executive

In the Parliamentary Republic which those used the Parliamentary
System Prime Minister or Premier is the head of the executive. He is the real
executive. In that case even though the President is the head of the state he is
the nominal executive. Parliamentary executive is generally marked by two
main characteristics.
(i) The formal appointment by the head of state of the head
of executive and the ministers.
This category includes Australia, Austria, Belgium, Canada, Ceylon,
Denmark, Germany, Italy, Japan, New Zealand, U.K, USSR, China and
socialist countries.
We should study well, the effective executive body and formal executive
body.
(Note; - India is described as having a president as chief executive,

where as in practice the parliamentary-executive prevails.)

(ii) The necessity of parliamentary approval before the appointment
of the head of the executive and the ministers can be effective.
This is the case in China and Socialist countries, Germany, Israel, Italy,
Japan and Switzerland.1
In studying the Swiss Constitution, we got the following facts:
Member of the Swiss Federal Council are appointed from among all
eligible citizens; by a joint session of the National council and the Council of


Commentary analysis by L. WOLF-PHILIPS-----P.(XX)
1
Constitutions of Modern State------P. (XX)
 38

States, which joint body sits as the Federal Assembly. The Federal Council
embodies cantonal and party representation. (See Art 71-83, 96) Federal
councilors have the right to speak but not to vote in the Assembly. (Art. 101)
The author of modern Constitutions gave the ‚following comments;
The Swiss executive resembles the presidential or non-parliamentary
executive. But since it is chosen by the parliament on party lines, after a
general election and since its member normally speaks and sits in the
parliament, it has resemblance also to the parliamentary executive.1
According to the Constitution of the Union of Burma (Myanmar) 1947
President of the Union was nominal executive but the Prime Minister was real
executive.

real executive

nominal executive

formal appointment

head of state
socialist countries
executive body
described

chief executive

prevails

approval

eligible citizens

Federal Council

joint session

National Council

1
-ibid-
 39

Council of States

Federal Assembly

party representation

right to speak
vote
resembles

the presidential

non-parliamentary executive

general election

resemblance

2.5 Nature of Judiciary

The nature of judiciary or judicial system is different from one to
another under the application of difference legal systems of the world. The vital
distinction is one that concerns the connection of the judiciary with the
executive.
In most continental states there is a special system of law to protect the
civil servants of the state in the discharge of their official duties, if they should
thereby be guilty of acts which, committed by unofficial persons, would be
unlawful. This system was born in France, where it goes by the name of Droit
Administratiff (i.e. Administrative Law). Most continental state, which have
been satisfied in other respects to model their executive systems the British
pattern, have in adopting an administrative law, departed utterly from the
Anglo-Saxon spirit. For example in Britain and those communities which have
sprung directly from her, and have carried with them her legal, if not always
 40

her constitutional, system, a special system of administrative law for the

protection of government officials is quite known.1
nature of judiciary
judicial system
application

vital distinction

continental states

to protect

civil servants

discharge

official duties

guilty of acts
committed
unlawful
administrative law
In the U.K and her Colonial Empire, in the U.S and Latin American
Republics (mostly modeled upon the U.S), the official is in precisely the same
legal position as the private citizen and the judiciary cannot take cognizance of
the plea of state necessity in extenuation of acts on the part of state officials
calculate to infringe the liberty of the subject. (This non- immunity of the
official is known as the Rule of Law) This distinction lies because of the
difference of legal systems.
In continent, there are special administrative courts (acting outside the
legal code to protect the servant of the state, which gives him a prerogative
before the law over the private citizen.
I type:- in Common Law states, it is subject to the Rule of Law.

1
. The History of Political theory ----P. 399
 41

II type:-in prerogative states, it is under Administrative law.

This is the study of nature of judiciary, whether subject to rule of law or
under Administrative law.
Furthermore as the legal systems are differed, the judiciary and judicial
systems also different in the Common law, Civil law and Socialist law families.
Common law judges have the right to interpret the law and Constitution,
but Civil law judges and socialist law judges have no right to interpret the law
and Constitution. Most of the Civil law Countries from the Constitutional
Courts or Constitutional Tribunals to interpret the constitution and to solve the
constitutional problems.
legal position
private citizen
the judiciary
cognizance
extenuation of acts
calculate
to infringe
liberty
distinction
special administrative courts
prerogative
right to interpret
Constitutional Tribunals
to solve
constitutional problems
42
 1

Chapter - 3
Constitution of the Union of Myanmar 1947

3.1 The Drafting of the Constitution

The Constitution of the Union of Myanmar owes its inception to what is popularly
known as the Aung San Attlee Agreement signed in London in January, 1947. The
agreement was the result of talks between Mr. Attlee and his Labour Government, and U
Aung San and his delegation who had been invited to London to discuss the future of
Myanmar.1
The agreement virtually guaranteed the Independence of Myanmar the option
either to leave or stay within the Commonwealth. It was also agreed that elections to
Constituent Assembly which was to draft the Constitution was to be held in April 1947.
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 Areas
Committee of Enquiry consisting of equal members from Ministerial Myanmar and from
the Frontier Areas2.
In February 1947 U Aung San and the AFPFL (Anti-Fascist 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 Areas.4 Also present at the conference
were the Saophas of the Shan States, the leaders of the Chins and the Kachins and

1
This agreement was published in London in 1947 as a Command Paper by His Majesty‟s Stationary Office.
London under the caption Conclusion reached in the conversations between his Majesty‟s 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.
2
See paragraph 8 of the above Conclusions.
3
The AFPFL was then the Party in Power Most of the leaders were in the Executive Council of the Governor. U
Aung San was then the president 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 P543. Comell University Press
 2

representatives of the Supreme Council of the united Hill Peoples (SCOUHP).

Fortunately agreement was reached on the 12th February and the Chins, Kachins and the
Shans decided to throw in their lot in the formation of a Unified Myanmar. 5 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 19476.
owe -

inception -

delegation -

virtually -

option -

guaranteed -

Commonwealth -

election -

Constituent Assembly -

draft -

unification -

Frontier areas -

5
The text of the Panglong Agreement is reproduced in the Report of the Frontier Areas Committee of Enquiry,
1947 Part 1. Government Printing Press, Yangon. It is also printed as Appendix III in Dr. Maung Maung‟s
Burma‟s Constitution.
6
The Committee consisted of 9 persons; 4 from Ministerial Burma (Myanmar). 4 from the Frontier Areas, and on
Chairman. The Chairman was an Englishman sent from England. Lt. Col: Rees Williams.
 3

Ministerial -

inhabitants -

ascertain -

reached -

throw in lot -

federated -

Also, in April, country wide election for the Constituent Assembly where held and
the majority of seats were won by the AFPFL.
In May, 1947, the AFPFL held a Convention at the Jubilee Hall in Yangon where
a “111 Member Committee” was appointed to draw up the first draft of the Constitution.
The Committee worked night and day and on May 23rd .1947, the draft was produced and
adopted.7
In the meantime, U Chan Htoon an able lawyer had been appointed constitutional
adviser.8 In April 1947, U Chan Htoon when over to India to consult Sir B. N. Rau,
India‟s constitutional adviser. According to Sir Benegal Rau9 the first draft of the
Constitution 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.
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

7
For a re-print of this draft see Appendix IV of Dr. Maung Maung‟s Burma‟s Constitution.
8
After Independence in 1948, U Chan Htoon was appointed as Attorney General and served
9
See India‟s 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 Burma‟s
Constitution is included. pp 443-461
10
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 Maung‟s
Burma‟s Constitution.
 4

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 for
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 provisional President might
announced by proclamation. On 10th December 1947 the parliament of the United
Kingdom passed the Burma Independence Act recognizing Myanmar as an independent
country with effect from 4th January 1948. Thus, this date was proclaimed as the date of
the commencement of the constitution.
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 s.140 was amended on 3rd January
1948, on the even of Independence and the “consultation clauses” in respect of the
appointment of the Chief Justice of the Union and the other Judges of the Supreme Court
and the High Court were deleted11.
country wide election -

majority of seats -

draw up -

consult -

apparently -

subjections -

session -

handed over -

11
See Dr. Maung Maung Burma‟s Constitution P. 149. Orginally, the Chief Justice of the
Union was to be appointed by the President in consultation with the Prime Minister. The
other Judges of the Supreme Court and the High Court were to be appointed by the
President in consultation with the Chief Justice of the Union and the Prime Minister in
both cases the approval of both chambers of parliament was to be obtained.
 5

proclaimed -

proclamation -

in the meantime -

deleted -

3.2 The Nature of the 1947 Constitution

The constitution of the Union of Myanmar unlike the Indian Constitution is not a
very long document, although it is by no means a very short one 12. In consisted of a
Preamble and Fourteen Chapters this in turn was made up of 234 sections. The
constitution has also four schedules attached to it. The First Schedule describes the form
of Oathof Affirmation to be taken by a person who has been chosen as a Member of the
Chamber of Deputies or the Chamber of Nationalities. The Second Schedule lays down
the composition of the Chamber of Nationalities. The Third Schedule is divided into two
lists: List 1, which is the Union Legislative List, and List II, which is the State Legislative
List. The fourth Schedule is the State Revenue List.
One of the reasons why the Myanmar Constitution is not longer is that certain
matters of detail are not included in it for example the provisions regarding citizenship in
the constitution are not elaborated. They were later more fully enacted in the Union
Citizenship Act. So also the constitution does not contain in great detail the provisions of
Union Judiciary. Such provisions are to be found in the Union Judiciary Act 1948. The
constitution also does not contain elaborate provision 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

12
The Constitution and the Schedules are annexed to this Article as Appendix I
 6

mind that there are several acts which have a direct bearing on the constitutional structure
of the country.
document -

Preamble -

schedules -

attached -

Oath of affirmation -

Chamber of Deputies -

Chamber of Nationalities -

composition -

Union Legislative List -

State Legislative List -

State Revenue List -

elaborated -

apportionment of seats -

component -

Parliamentary Elections Act -

complete -

several acts -

bearing -

constitutional structure -
 7

3.3 The Sources of the 1947 Constitution

Regarding the sources of the constitution, the first source is the Government of
Burma Act 1935. There is not doubt that some of the sections of the present Constitution
are obviously related or inspired by some of the sections of the Government of Burma
Act.13 Thus, as pointed out already the Myanmar constitutional adviser U Chan Htoon
during his visit to Delhi in April 1947 had the benefit of Indian ideas on the Constitution.
In fact Sir Benegal Rau claims that the first draft of the Myanmar Constitution was drawn
in India and taken back to Yangon in May, 1947. It is also a known fact that Sir Benegal
Rau himself came over to Yangon to give advice on the final 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.
Beside the Indian Constitution, the Myanmar Constitution is inspired by the other
constitutions. Thus the President as the nominal Head of the Executive is to some extent
inspired by the French Constitution (The fourth Republic). The portion on Fundamental
Rights the ideological portion is inspired by the Constitution of the United States and
coloured by that of later constitutions like the Constitution of Eire. The idea of
incorporating Directive Principles is also taken from the Constitution of Eire. There are
also other sections in the Constitution like the one which deals with the question of
dissolution of Parliament (s.57), which is directly based on the Constitution of Eire (Art.
13) (2). The provisions regarding the powers and functions of the President are also very
similar to that contained in the Constitution of Eire. The Yugoslav Constitution was also
consulted frequently-particularly in regard to the provisions relating to the economic
policy of State Socialism.

13
The Government of Burma Act. 1935 is sometimes referred to as Myanmar Constitution
under British Rule. Powered the Act was by no means a complete constitutional document.
The powers of the Head at the Executive (The British Governor ) and the way the Government was to be run
was largely contained in the instructions to the Governor by the British Monarch Thus these instructions are
also to be regarded as part. Myanmar‟s Constitution under British Rule.
14
Dr. Maung Maung,Burma's Constitution.P.84
 8

Last but not the least comes the (unwritten) British Constitution and the
conventions of the constitution. For example there is no doubt that the principle or
responsible government has been borrowed from the British System. Thus the English
Convention that the Prime Minister and Ministers are collectively responsible to the
popular chamber is to be found in s. 155 of the Myanmar Constitution. The convention
that Parliament must be summoned at least once a year is to be found in s. 66 of the
Constitution. Again the convention that financial proposals may be introduced only in the
popular chamber of the legislature is enacted in s. 103 of the Constitution.
In copying the English conventions it cannot be said that the framers of the
Myanmar Constitution have done so in toto. Such a thing is obviously impossible. Thus s.
115 of the Myanmar Constitution does not exhaustively lay down the principles upon
which the cabinet system should work.
inspired -

adviser -

ideas -

taken back -

identical -

ideological -

parallel -

nominal -

extent -

coloured -

Constitution of Eire -

dissolution -
 9

consulted -

frequently -

particularly -

borrowed -

collectively -

summoned -

once a year -

financial proposals -

chamber -

framers -

in toto -

exhaustively -

cabinet system -

It merely incorporates the principle of collective responsibility but nowhere

mentions the principle of individual responsibility of the ministers concerned15
Another convention is 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:-

15
Note this point is however not free from difficulty. One point of view is that even though the
Constitution says that the President can act “ in his discretion” in certain matters. He should still
consult the Ministers: and if possible accept their advice. This question involving the powers of
the President has become a lively one recently and is discussed more fully in this article in
dealing with the President.
 10

Sec: 63 (1) The powers and functions conferred on the President by this
constitution shall be exercisable and performable by him only on the advice of the Union
Government save where it is provided by his constitution that he shall act in his
discretion or on the advice or nomination of or on receipt of any communication from
any other person or body.
The question which now remains to be answered is whether in matter where the
Myanmar Constitution is silent should the English convention on the point be followed or
should a different rule be adopted. The answer probably would be that as we have already
adopted the British system of Parliamentary Government, English conventions should be
followed as something which has been successful in practice.16
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
“Myanmar‟s Constitution”. In fact over the last thirteen years since Independence there
has already been evolved the convention that when the name of a prospective Judge of
the High Court or the Supreme Court is put up for approval to the Chambers of
Parliament under s. 140 of the Constitution members must refrain from speaking against
the candidates in any detail. This is because Judges must have untarnished names and the
confidence which people have in them must be complete.17
incorporate -

collective responsibility -

individual responsibility -

appreciated -

performable -

in his discretion -

16
See Basu‟s Commentary of the Constitution of India Vol P. 21
17
Maung Maung Burma‟s Constitution P. 149
 11

receipt -

remain -

silent -

occasions -

peculiar -

prospective -

put up -

candidates -

untarnished name -

3.4 The Evolution of the Federal Structure

The Panglong Conference in February, 1947 made it fairly clear that besides the
Shans, the Kachins would also like a State. The Chains however than seemed to be
satisfied with something less than a State.
At the investigations made by the Frontier Areas Enquiry Committee a few
months later in March and April 1947 the stand taken by the karenni‟s and the Karens
made it even clearer that the amalgamation of the Frontier Areas (including those
inhabited by the Kareans) with Ministerial Myanmar would not be possible and that some
type of Federal Constitution would be necessary.18
Chains -

Frontier Areas Enquiry Committee -

amalgamation -

inhabited -

18
See: Report of the Frontier Areas Committee of Enquiry part 1. P 27 Government Printing Press 1947
 12

investigations -

fairly -

Karenni -

3.4.1 The Drafting of the Federal Provisions

Thus in May 1947, when the AFPFL Convention set to draft a Constitution the
problem of drafting the Federal Provisions was found to be a difficult one. It was then
decided that three different classes or units should be included in the Constitution: viz
The Union State: the Autonomous State: and the National Area.
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 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.
The second status was that of an “Autonomous State”. It was to be accorded to a
people who more or less possess characteristic enumerated in respect of the Union State,
but lack in economic self-sufficiency. The Autonomous State was to have an elected
State Council which in turn would elect a Chief Executive Officer who would be the
 13

Chief of the State. The State Council was to have certain legislative powers by making
ordinances in respect of certain matters.
The third status was that of a “National Area”. It was to be accorded to a people
who lacked the qualifications for the Union State or the Autonomous State but possess
more or less a distinct language and a territory in which they are concentrated in
appreciable numbers, and a desire to maintain their distinct identity Unlike the Union
State and the autonomous State the Chief Executive was not to be elected, but was to be
appointed by the President of the Union and was to be called the “Administrator”. There
was also to be an “Advisory Council” to assist the Administrator. The Advisory Council
was to have the powers and perform the functions of a local self-governing body.
set to draft -

Autonomous State -

National Area -

accorded -

a defined geographical area -

a character of its own -

unity -

self-sufficiency -

fairly -

distinct -

identity -

separate unit -

conformity -

feature -
 14

characteristic -

Governor -

enumerated -

Chief Executive Officer -

Chief of the State -

ordinances -

concentrated -

appreciable numbers -

Administrator -

Advisory Council -

assist -

self-governing body -

3.4.2 Status of Component Units

The above classification of the status of component units in 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.
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 Area was
probably meant for the Chins who in any case did not desire a State at that time.
 15

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 was probably for this reason that the
AFPFL convention in its draft of the Constitution included a special Chapter for what
was called “National Minorities”. A National Minority was defined as a group of persons
who:-
(1) Differ from the Myanmar in race, language, culture and historical tradition
and
(2) from at least one-tenth of the population of Myanmar or of any unit.
A Nationality Minority was guaranteed human right, 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 Council to aid
and advise the Union Government on matters relating to the Karens.
proposed -

indeed -

drawing -

first draft -

minority -

status -

desire -

perhaps -

scattered -
 16

unevenly -

concentration -

Delta Region -

Salween District -

carve out -

deserved -

one-tenth -

National Minorities -

freedom of association -

cultural autonomy -

aid -

advise -

specifically -

probably -

3.4.3 Some Practical Difficulties

Fortunately, or unfortunately, the above provisions were 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 the constitution committee of the Constituent
Assembly.
Probably on 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
 17

as money. According to U Chan Htoon the Constitutional Adviser, the 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 world therefore has been prohibitive.19
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.20 At the same time it was clear that the
formation of a Unitary State would not be possible. The minority group in Myanmar
desired a federation.
embodied -

secured -

stricter -

Constituent Assembly -

envisaged -

realized -

Federal organ -

Federal structure -

prohibitive -

loomed -

frontier peoples -

federation -

Unitary State -

19
See Constituent Assembly Proceedings. Vol. 2 No.5. Aug 4. 1947, P. 133 Government Printing
Press Yangon.
20
See C.F Strong National Political Constitutions. Revised Edition 1952. P. 99
 18

3.4.4 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
Kareans, would have their own States would from autonomous units in the
Union of Myanmar, which would be a Federal State
(2) Each State was to have its own State Council, which was to be composed of
members of both Chambers of Parliament coming from the constituencies
of that State.
(3) That one of the aforesaid members of Parliament is to be appointed by the
President (in consultation with the State Council) as a member of the Union
Government (Ministry). That person is also to be the Head of that State.
The Head of State will also be the Chief Executive for that State.
(4) That the State Council concerned will also be the State Legislature. It will
have powers to pass Bills coming under the “State Legislative List”. In
other words, what is called the “reserve of powers” will be within the
Union Government.
(5) The State Executive (the “State Government) is to consist of the Head of
State and a “Cabinet will be selected from members of the State Council.
evolved -

pattern -

composed of -

Chambers of Parliament -

constituencies -

aforesaid -

consultation -
 19

Bills -

State legislative list -

reserve of powers -

Cabinet -

autonomous units -

3.5 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 realise that although the Union of Myanmar is a
federal State, it is only a moderate type of Federation based more on the Canadian model
rather that of the United States.
The component units of the Union of Myanmar under the Constitution (s.222(1))
consist of the “States” and “all the territories of the Union of Myanmar not forming part
of any State”. The latter territories therefore consisted of what is popularly called
“Myanmar proper” and also territories like the Araken Division the Chin Hills Special
Division and the Kawthulay Region.21
The interesting feature in the Constitution therefore is hat while these territories
together form a “unit” of the Union of Myanmar they do not form “State”. Therefore
there are no separate organs for these territories. The Union Government and the Union
Parliament are also Executive and the Legislature respectively for these territories.22

21
As will be seen later the kawthulay Region has more or less been merged into the Karen State
which was formed in 1951. The Karen State is now a “unit” by itself.
22
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.
 20

brief -

sketch -

federal pattern -

examined -

realize -

moderate -

component units -

territories -

Myanmar proper -

Kawthulay Region -

separate -

Araken Division -

Chin Hills Special Division -

3.5.1 The States and their Territories

At first the Constitution provided for the Establishment of three States only;
namely, the Shan state and the Karenni State (s. 5.6.7). It also contemplated that in due
course the Karen State was to formed (s.180). At the time of the enactment of the
Constitution no agreement had been reached as to the areas which were to comprise the
Karen State. In the meantime there was to be an area called the “Kawthulay region” (s.
181).
 21

As far as the State territories were concerned, the Shan States was to include the
territories which were previously known as the Federated Shan States and the Wa States
(s. 5). This area was apparently acceptable to the Shans.
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 known as “Kantarawaddy, Bawlake and Kyebogi(s.7).
contemplated -

reached -

comprise -

Wa States -

allocation -

liberal -

belonged to -

hitherto -

amalgamation -

Kantarawaddy -

Bawlake -

Kyebogi -
 22

3.5.2 The State Councils

Each State was to have its own State Council. The members of both Chambers of
Parliament (i.e. Chamber of Deputies and Nationalities) from the States are to comprise
the State Council. The State Council is also the legislature for that State.
The composition of the Council however varies for each State. As far as the
election from the States to the chamber of Deputies is concerned, the method is to be the
same as that to be adopted by Myanmar proper i.e they are to be elected on a population
basis (s. 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 ration to be given in the Karenni State which has a population of about
7,000 only.
State Council -

comprise -

composition -

varies -

population -

basis -

fixed -

ratio -
 23

3.5.3 Membership of the Parliament

“Thus we find that in the Parliamentary Election Act 1948, it was stipulated that
the total number membership to the Chamber of Deputies was to be 250 out of which the
following allocation was made to the States.
(1) 25 members for the Shan State
(2) 7 members for the Kachin State;
(3) 2 members for the Karenni State;
As already state all these members are automatically incorporated into the
respective State councils.
Regarding the provisions for the election of members to the Chamber of
Nationalities from the States, the procedure was different from that for Myanmar proper,
and also different between different states. Under s.87 of the constitution, the Chamber of
Nationalities was to consist of 125 members as allocated in the second schedule of the
constitution. The Second Schedule in turn made the following allocation to the State.
(a) 25 seats to be allocated to the Shan States:
(b) 12seats to the Kachin State
(c) 3 seat to the Karenni State
Under s. 154(3) of the Constitution the said 25 representative from the Shan States
in the Chamber of Nationalities was to be elected by the Saophas(hereditary chiefs) of the
Shan States among themselves.23 Thus the Saophas alone could be elected to 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 themselves familiar with Parliamantary democracy. If the chamber

23
This provision has been repeated after the surrender of powers by the Saophas in April 1959 under the
Constitution (Second) Amendment. Act 1959
 24

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 representative of the Kachines and the
other 6 by those of the non-kachins. This is because Myitkyina and Bhamo towns which
are in Myanmar Proper before the 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 difficulty, as it was stipulated in s. 183 of the constitution that the
Sawphyasof Kanatarawaddy, Bawlake and Kyebogyi are to be represented in the
Chamber of Nationalities. Thus the three seats reserved for the Karenni State was to go to
them. No election is therefore required.
Parliamentary Election Act -

stipulated -

automatically -

allocation -

Saophas -

hereditary -

counter balance -

transitory -

designed -

appease -

familiar -

Chamber of Deputies -

Chamber of Nationalities -
 25

filled -

populated -

considerable -

Shan-Talok -

Gurkhas -

Sawphyas -

reserved -

3.5.4 Functions and Powers of the State Councils

Coming now to the procedure functions and powers of the State Councils, we find
that the provisions in the constitution for each of the State Councils are substantially the
same although they are reproduced under different chapters.
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.24 Such bills passed by them are to be
presented to the President for signature and promulgation25 is to sign the bill within one
month of presentation if he feels that it is repugnant to the provisions of the Constitution.
The Supreme Court consisting of not less than three Judges is then to consider the
question referred to it and pronounce is 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

24
Note however the provisions of s.94 & 95 of the Constitution. Under s. 94 when a “Proclamation of Emergency”
is declared by the President that Union Parliament can make law for any State (or part thereof) for matters
enumerated in the State Legislative List. Under s.95 where two or more State Councils desire the Union
Parliament to pass an Act in respect of matters coming under the State Councils concerned shall have the power
to amend such as Act by itself.
25
Bills passed by the State Councils can apparently be passed by a majority vote. However in view of the
existence 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 or non-Kachins as a class or community 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.
 26

then to make the necessary amendments. Otherwise the President will not sign it. If
however the Supreme Court decides in favor of the State Council, the bill is to be signed
by the President. Once the President has signed the bill the validity of any of the
provisions of the bill is not to be called into question on the ground that it was beyond the
competence of the State Council.
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 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.
substantially -

reproduced -

State Legislative List -

appended -

presented -

promulgation -

repugnant -

pronounce -

date of reference -

reconsideration -

bill -

validity -

competence -

recommend -
 27

summoning -

proroguing -

session -

intervene -

3.5.5 The State Governments

The State Government consists of the Head of State and a Cabinet of State is to be
a member of the Union Government. The Head of State is to be nominated from among
the members of Parliament (of either chamber) representing that State. The nomination is
to be made by the Prime-Minister in consultation with the State Council concerned and
the appointment is to be made by the President.26
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 to be exercised by him. However in respect
of matters regarding which the State Council has power to make laws, the decision is to
be binding on the Head of State. It is also provided that in all other matters the Head of
State is to consult the State Council. But this can be done through the Cabinet of State
Ministers which as already observed are selected from among the members of the State
council.
There are also provisions in the Constitution making of a State responsible to the
State Council concerned. Thus the Head of a State is to give a State: and recommend for
the consideration of the Council such measures as he thinks fit for the general welfare of
the State.

26
After the split of A.F.P.F.L in 1958, the question arose whether the Prime Minister could
appoint the Head 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 consultation clause.7 was directive rather than mandatory. See
Burma Law Reports 1958 P. 81 (SC)
 28

The Head of the State is also to prepare the budget estimate of the State and
present them to the State Council. After consideration and approval by the State Council
the State budget will be incorporated into the Union Budget.
Cabinet of state -

nomination -

Prime-Minister -

consultation -

administration -

executive authority -

observed -

recommend -

consideration -

welfare -

budget estimate -

Union Budget -

3.5.6 State Secession

At the time when the Frontier Areas Enquiry Committee help its investigations in
March and April 1947, the majority of witnesses who appeared before the Committee and
favoured a federation also asked for the right of secession at any time. The committee
was however good enough to observe in its report that few Federal Constitutions contain
provision for the secession of component states. They were of opinion that if such a right
 29

were to be contained in the federal Constitution of Myanmar, it would have to be

carefully limited and regulated.27
Thus from the time the first draft of the constitution was drawn up by the AFPFL
convention in May 1947, the right of secession head to be include. There was provision
that the right of secession was to be accorded to the “Union State and the Autonomous
State”. Subject jot certain safeguards. Later although this classification was dropped that
right of session was incorporated into the final draft of the constitution.
The right of secession is defined in Chapter X of the Constitution. Section 201
states that save as “otherwise expressly provided” in the constitution or by Act of
Parliament every State shall have the right to secede from the Union. This right is subject
to the conditions laid down in the other sections following it. Then, in s. 178 it is
“otherwise” expressly provided” that Chapter X of the constitution shall not apply to the
Kachin State in order words the right of secession was not given to the Kachin State but
was only given to the Shan State and the Karenni State. This was because the Kachin
State itself was built up with the addition of Bhamo and Myitkyina from Myanmar
proper. The State's future must therefore in severable linked with that of the Union.28
Under s. 202 of the constitution the right of Secession is to be exercised only after
10 years. In other wards the right becomes exercisable after 4th January 1958. Sections
203,204 and 205 prescribe the procedure and requirements for the exercise of the right.
Any State which is qualified to exercise the right of secession and wishes to do so must
have a resolution passed to that effect by its State Council. For passing such a resolution
2/3rdof 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

27
See p. 28-29 of the Report Part 1
28
See Maung Maung Burma‟s 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 Independence.
 30

commission is to consist of an equal number of members representing the Union and the
State concerned.
Frontier Areas Enquiry Committee -

majority of witnesses -

investigation -

federation -

right of secession -

observe -

component states -

limited -

regulated -

AFPFL -

dropped -

incorporated -

accorded -

right to secede -

linked -

qualified -

resolution -

favor -
 31

notify -

plebiscite -

ascertaining -

3.6 The President (Head of Executive)

It was clear to the framers of the Myanmar Constitution that Myanmar would
become a Republic after the British left Myanmar. The problem was therefore to define
the status, functions and powers of the Head of the Executive and to decide by what name
he was to be called. The obvious thing therefore was to follow the precedents from the
existing Republics and call the Head of the Executive “The President”.
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 been given a
good example of a President who is the nominal executive. Moreover, the framers of the
constitution were also greatly attracted by the provisions of the Constitution of Eire. This
was because the course taken by Eire in leaving the British Commonwealth somehow
appealed to the Myanmar leaders who had decided on the same course. Thus we find that
many provisions of the Myanmar Constitution relating to the President are very similar to
that contained in the constitution of Eire.
left -

Head of Executive -

obvious -
 32

precedents -

wedded -

reins -

nominal -

attracted -

British Commonwealth -

appealed -

Constitution of Eire -

3.6.1 Status

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

throughout -

designated -

identical -

3.6.2 Qualifications

The Qualifications for the President are simple and by no means imposing. Under
s.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 is
qualified for election to the Union Parliament. Under s.76(1) “Every citizen who has
completed the age of twenty one years and who is not placed under any disability or
 33

incapacity by the Constitution or by law shall be eligible for membership of the

Parliament”. The disabilities placed under the constitution for election as a member of
Parliament is in turn enumerated in s.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 who is of
unsound mind holds an office of profit; or has been convicted of a serious criminal
offence; or has been found guilty of election malpractices; cannot become a member of
Parliament. The President therefore cannot possess these “qualities”.
The first point to note regarding the qualifications of a President is that it is not
only restricted to citizens (which is to be expected) but the test “place of birth” is also
contained. This requirement is not to be found in the Constitution of India or Ireland, or
the Myanmar Constitution is closer to the US Constitution where Art. 11. sec. 1(5) a
person must either be a natural born citizen or a citizen of the United State “at the time of
the adoption of this constitution”.
At the same time; it is noteworthy 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 constitution of Ireland India and the United States a
person below 35 cannot become President while in the late Constitution of Pakistan the
age limit was at 40.
imposing -

territories -

completed -

disability -

incapacity -

eligible -

enumerated -

discharged -
 34

bankrupt -

convicted -

allegiance -

guilty -

malpractices -

restricted -

closer -

natural born citizen -

noteworthy -

3.6.3 Method of Appointment

Under s.46 of the constitution the President is to be elected by both of Parliament

in joint session. A detailed regulation regarding the election of the President is to be
found in the President Elections Act 194929. 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 Art. 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, 30and the
Provincial Assemblies. In Myanmar however to Electoral College was necessary as the

29
The regulations contained in the said Act are still interesting for example s. 4(1)(c) of the Act require that the
nomination paper must be signed by at least 30 members of Parliament In 1952 in respect of one of the
candidates, to nomination papers were field signed by 19 and members respectively. The nomination was
accordingly rejected by the Speaker of the Chamber of Nationalities. The question was then referred to the
Supreme Court which decided that the plain meaning of the law must be taken and by that the rejection was
valid see 1952 B.L.R (S.C) p. 135
30
The late constitution of Pakistan contains provision for only a Unicameral legislature and is called the National
Assembly.
 35

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 provisions regarding the Union President are similar to that
of the President of Eire, there is this essential difference in the method of election31.
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 adults suffrage. A third reasonwas that if a President was to be elected directly by the
people then he must be someone who must command an efficient and elaborates party
machine to win the election. That would exclude people who are not politicians, but at
the same time men of eminence who might fill the Presidency well.32
Joint session -

detailed regulation -

electoral college -

Legislative Assemblies -

National Assembly -

franchise -

anomalous -

tremendous -

31
This difference is important when one has to consider the behind the limitation of powers of the President.
32
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
 36

suffrage -

command -

elaborates -

politicians -

efficient -

eminence -

Presidency -

3.6.4 Tenure

Under s.48 (1) the term of office for a President is five years. Under s.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 “(Art.
12(13)(2)). The same provisions existed in the constitution of the Fourth French Republic
(Art 29) and the late Constitution of Pakistan (Art. 33). It is however different from that
of the Indian Constitution which imposes no limit to re-eligibility (Art.57).
served -

Irish principle -

eligible -

re-election -

imposes -

Fourth French Republic -

Indian Constitution -
 37

Constitution of Pakistan -

re-eligibility -

3.6.5 Removal

A President may be removed from office by impeachment under s 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 both Chamber
of Parliament and every proposal to prefer a change must be signed by not less than 1/4th
of the total membership of that chamber when a charge is preferred by one Chamber it
must be investigated or caused to be investigated by the other Chamber. The President
has the right to appear or be represented at the investigation. After investigation in order
to sustain the offence charged a resolution supported by not less than 2/3rd of the total
member shipof the investigating chamber or the chamber that caused the investigation is
necessary. Only through this process can be President be removed from office. These
provisions for impeachment are also substantially a reproduction of Art 12(10) of the
Irish Constitution. It is also similar to Art 61 of the Indian Constitution.
It should be noted that the phrase “cause to be investigated” seems to imply that
the other chamber may delegate the work investigation to any court body or Tribunal
appointed by it. So far these technicalities have not yet been thrashed out as no President
has yet been impeached.
impeachment -

high treason -

gross misconduct -

charge -

preferred -

sustain -
 38

resolution -

supported -

investigation -

substantially -

reproduction -

Tribunal -

technicalities -

thrashed -

3.6.6 Vacancy

Myanmar had no Vice-President, as in the case of India. Whenever the Office of

President becomes vacant the powers of functions of a commission is to be composed of
the C.J. Union, 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
Acing chief Justice or any other Judge of the Supreme Court is to take his place. So also
the deputy Speaker is to take the place of the Speaker is similar circumstances.
Such a situation arose only once since Independence in December 1957, when the
present President went for medical treatment to the United State.33 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 4th January 1958.34 Fortunately, however, the President
arrived back in Yangon in time.

33
Apparently on the advice of the Union Government, For otherwise the President cannot leave the Country. See
s.52 of the Constitution.
34
The problem was whether the three members should take the salute together and who was to deliver the address.
 39

Vice-President -

vacant -

composed -

Chamber of Nationalities -

Chief Justice -

deputy speaker -

medical treatment -

arose -

perform -

Manual Independence Celebrations -

fortunately -

in time -

3.6.7 Powers of the President

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 s. 45 of the constitution the
latter part of which states that the President „shall exercise and perform the powers and
functions conferred on the President by this constitution and by law”.
Then there comes s.59 the first part of which states tat “subject to the provisions of
this constitution the executive authority of the Union shall be vested in the President”.
 40

It is interesting to note that the provisions in these two sections of the Myanmar
Constitution are more or less combined in Art. 43(1) of the Indian Constitution which is
in the following terms:
“Art. 53(1) the executive power of the Union shall be vested in the President and
shall be exercised by him either directly or through officers subordinates to him in
accordance with this Constitution”.
However, though both the Indian and Myanmar constitution way that the
executive power shall be “vested” in the President in the same way it is said in the U.S.
Constitution (Art. 11. Sec. 1(1). He will not be the real Head of the Executive like the
U.S. President. He will have to exercise his functions in accordance with the constitution
thus delimiting the scope of powers given to him.
academic -

intriguing -

aroused -

dummy -

interpretation -

bear in mind -

executive authority -

combined -

vested -

subordinates -

delimiting -

The Myanmar Constitution also makes it obligatory on the President to exercise or

perform the powers and functions conferred on him only on the advice of the Union
Government”, except where it is provided by the constitution itself that can act in his
 41

discretion or on the advice of 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 dies not expressly make it obligatory on him to
act on ministerial advice. It merely states in Art .74(1) that there shall be a Council of
Ministers with the Prime Minister as its Head to “aid and advice” the President. Even
then it is generally accepted that the words “aid and advise should not stand in the way of
responsible government”.35
Coming again to s.63 (1) of the Myanmar Constitution it is clear that it deals with
three types of powers and functions of the President:
(a) powers or functions, exercisable or performable only on the advice of the
Union government.
(b) powers or functions exercisable or performable in his discretion.
(c) powers or functions exercisable or performable on the advice or nomination
of or on receipt of any communication from any other person or body.
The phrase “any other person or body” in clause (c) above is generally accepted to
include Boards corporations or Commissions. Which is setup under a special statue or
statutory order (delegated legislation).
It should also be observed that s.63 (1) is not exhaustive in the sense that it does
not cover some of the functions or power which the President must perform of exercise.
For example, the President is to appoint the Prime Minister on the nomination of the
Chamber of Deputies. In performing such a function the question of advice of the Union
Government or the question of discretion on the part of the President does not arise.
The main bone of contention now is over the “discretionary powers” of the
President. The problem is really of a two fold nature namely: (1) Whether the president
can entirely exclude the 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.
35
See Basu‟s Commentary on the Constitution of India vol. 1 P. 417 and P. 471
 42

obligatory -

discretionary powers -

exercisable -

performable -

statutory -

delegated legislation -

observed -

exhaustive -

Chamber of Deputies -

contention -

entirely -

exclude -

allows -

discretionary -

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 s.74 (vi). a person who has been convicted an offence and has been
sentenced for not less than two years cannot stand for election as member
of Parliament unless five years has elapsed since his release: However, the
President may in his direction, in any particular case, allow lesser period.
(2) Under s.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.
 43

(3) Under s.107 the President may, in his discretion refer a disputed question as
to whether a bill is “Money bill” to a Committee of Privileges, on the
request of the Chamber of Nationalities for such a reference.
(4) Under s.143 (6) when a charge is made against any judge of the Supreme
Court in any Chamber of Parliament and if the President does not wish to
sit and the Special Tribunal which is to be formed to enquire into the
charge, them he may appoint some other person in his discretion, to sit on
it.
(5) Under s.147 the president in his discretion may appoint any person to act as
a judge of the High Court, and such appointment is to be revoked by the
President in his discretion.
(6) Under s.157, 170(1), 180(6) and 186(1) the President in his discretionmay
refer any bill passed by the States and presented to him for signature to the
Supreme court to decide whether the Bill any part there of is repugnant to
the provision of the provisions of the constitution.
On going through the above powers given by the Constitution to the President, it
must be admitted that the quantum of such powers is not very great. There is also nothing
to suggest on the face of it, that such powers must be or at any rate ought to be exercised
on the advice of the Union Government. In fact there is nothing to suggest that he should
even consult the Union Government in doing so especially with regard to items 5 and 6
enumerated above.36
It should however be pointed out that there is a general belief that the provision in
the Constitution providing for the President to perform or exercise certain powers “in his
discretion” is more a result of accident or hasty drafting rather than careful design, 37 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
36
Under the Government of Burma Act 1935 and also in the Government of India Act 1935 express consultation
clauses were contained in respect of the certain functions exercisable by the Governor (or the Governor
General) in his discretion. On this point see also A. Gledhill. The British Commonwealth, the Development of
its Laws and Constitution. (vol.8) Pakistan,Stevens and Sons Limited London. 1957. P. 100
37
See Dr. Maung Maung Burma‟s Constitution P. 120
 44

Executive. This view is also supported by the fact that the Myanmar Constitution merely
uses the phrase “in his discretion” and not the phrase “in his absolute discretion” as in the
Constitution of Eire. Moreover, the phrase is weaker than the phrase “in his individual
judgment” which is also to be found in the Government of Burma Act 1935. The latter
phrase was used in that Act in contradistinction to the phrase “in his discretion.”
enumerate -

permits -

convicted -

sentenced -

stand -

elapsed -

release -

lesser period -

incurred -

lodge -

Committee of Privileges -

Parliamentary candidate -

reference -

wish to sit -

enquire -

revoked -

in his discretion -

repugnant -
 45

admitted -

quantum -

suggest -

consult -

general belief -

hasty -

careful design -

in his absolute discretion -

individual judgment -

contra distinction -

3.6.8 Functions of the President

Now becomes the question whether the President can still use his discretion in
exercising or performing certain powers of functions though the phrase “in his discretion”
is not expressly used. In particular there are three instances in respect of which
considerable confusion exists.
Further, there is s. 57 of the Constitution which states that the Chamber of
Deputies shall be summoned, prorogued or dissolved by the President on the advice of
the Prime Minister. The first proviso to that section is however in the following terms.“
"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 event forthwith call upon that Chamber to nominate a new Prime
Minister".
 46

In has therefore been argued that the above wording is clear and that discretion is
given to the President to refuse the advice of the Prime Minister although the words “in
his discretion” may be absent.38Assuming that the President has the discretion to refuse
the advice of the Prime Minister the question remains whether he should still seek the
advice of the Union Government in view of s.63(1). The practical answer would be that
this is not necessary or even practicable as the advice of the Prime Minister (who is the
Head of the Union Government) to dissolve Parliament is already there. However this
does not preclude the advisability of the President consulting the more important Minister
some of whom any certain a different view from that of the Prime Minister or consulting
leaders of the opposition party in Parliament. It is also significant to note that although
the proviso is strikingly similar to that contained in Art.13 sec2 (2) of the Irish
Constitution, that Constitution expressly confers on the President the power to refuse “in
his absolute discretion.” This phrase is absent in the Myanmar Constitution.
considerable confusion -

summoned -

prorogued -

dissolved -

proviso -

ceased -

retain -

forthwith -

argued -

38
This question arose during the split of the A.F.P.F.L in 1958 when the Prime Minister (U Nu) decided to test his
strength in the Chamber of Deputies. At that time there was considerable speculation as to whether the Prime
Minister would advise the President to dissolve parliament if he lost and in that event whether the President
could refuse the advice. However the Prime Minister managed to retain the majority support in the Chamber of
Deputies and the question of the discretion of the President to refuse the advice for dissolution did not arise. In
fact no advice for dissolution was given.
 47

Assuming -

practicable -

preclude -

advisability -

consulting -

opposition party -

confer -

in his absolute discretion -

The next question concerns the right of pardon sec. 60 is in the following terms:-
“60. The right of pardon shall be vested in the President”.
It will be seen that the wording in s. 60 is not very happy and it could be argued
that because of the existence of the word “right” it is the President alone who can
exercise it. It is however submitted that this “right” is in fact a “power” conferred on the
President, and as the words” in his discretion” are absent. It is to be exercised only on the
advice of the Union Government (s.63 (1)). This would also in conformity with the
accepted convention in England that though the Queen has the prerogative “right” to
grant mercy. It is always exercised on the advice the Home secretary. 39
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

39
The Home secretary in England combines most of the functions of the Home Minister and the Judicial Minister
in Myanmar.
 48

question to that Court for consideration and the Court may after such hearing as it
think fit report to the President there on".
Here again, it is respectfully submitted that as the words “in his discretion” are
absent, and also as the opinion of the Attorney General (who is the nominee of the Prime
Minister) is obviously necessary or desirable in making or drafting the reference, such
reference is to be made by the President only on the advice of the Union Government. To
put it in plain language, if the Union Government does not agree to the reference
(whether it sympathies with the personal view of the President or not) then the President
cannot make the reference.40
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.41 Thus as we have seen that the President is in
fact given some discretionary powers. Moreover, under s.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 President appears to have the
rights which a British Monarch is supposed to have namely “the right to be consulted, the
right which a British Monarch is supposed to warn”. Much would of course depend on
the personality of the President concerned. An adroit President will be able to act as a
mediator in important political issues. He can meet the opposition leaders and give the
Cabinet his views. Whether they accept his advice or nor is another matter.

40
An interesting question arose recently over the Election Commission Bill which was passed by Parliament a few
days before the Constitution (second amendment). Bill. 1961 was passed by Parliament. The President refused
to sign the Election Commission Bill on the ground that when the Bill was passed the Constitution (second
amendment) Act which created the commission had not yet been passed and therefore it was unconstitutional.
The matter was ultimately referred by the President to the Supreme Court under S.151 apparently with the
approval of the Government although it was not in sympathy with the views of the President. Subsequently at
the hearing of the refaced, the Attorney-General withdraw his appearance on the instruction of the Union
Government. The question arose whether the Attorney General should continue as amicus curae but the matter
was dropped and the Supreme court decided to give is report on the documents on the record . This shows
possibility of a conflict between the President and the Union Government. It is however submitted that the will
of the President in such matter must be the will of the Union government.
41
See the speech of Tha khin Nu (Prime Minister) before the Constituent Assembly. in vol 1.2 No. 5 of the
Proceedings dated 4th August 1947. P. 125-126
 49

Thus there is nothing in the Constitution to prevent the President from using his
position to be of real service to the country.42
right of pardon -

submitted -

prerogative -

grant -

mercy -

Prime Minister -

arisen -

expedient -

Attorney General -

nominee -

desirable -

sympathies with -

figurehead -

dictatorial powers -

keep -

informed -

domestic -

42
Perhaps it should also be mentioned that under s.61. The President may communicate with the Parliament by
message or address on any matter of national importance. The President may also address a message to the
nation at any time. On the plain reading of the section it does seem that he could exercise this power against
Ministerial advice. For this view see A. Gledhill. The British Commonwealth Vol. 8 (Pakistan) p.101, where he
compares the provision of Art 52 of the Pakistan Constitution (similar to s.61(1) of the Myanmar Constitution )
to “Art.87 of the India's Constitution where the wording is quite different.
 50

consulted -

warn -

adroit -

mediator -

political issues -

opposition leaders -

position -

real service -

British Monarch -

personality -

3.7 The Union Government

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

Executive -

3.7.1 Composition

Under the constitution the President is not part of the Union Government. 43 The
Union Government consists of the prime Ministers44 and the other members (s.114). The

43
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
Burma‟s Constitution P. 120
44
This is the first time that the office of “Prime Minister” has been given express recognition in Burma‟s
Constitution. Previously, under the Government of Burma Act 1935 S 5(1), reference was merely made to a
“council of Ministers”. However the British/ governor following the instructions contained in the Instructions to
 51

Constitution does not define what a “member” of the Union Government means but it is
clear that it means a Minister. In Myanmar there is as yet no distinction between
Ministers who are inside the cabinet and Ministers who are no, as in the case of the
United Kingdom or India. Thus all Ministers in Myanmar may be regarded as Cabinet
Ministers in the sense that all of them are normally asked to attend Cabinet Meetings.45
The spirit of the constitution requires not only the Prime Minister and most of the
Ministers to be members of Parliament, but that they should also belong to the Chamber
of Deputies as the Government has been made collectively responsible to the Chamber of
Deputies (s. 115). However it is envisaged that there may be occasions where non-
members of Parliament may have to be asked to serve as Ministers for a sort while. Thus
under s.116 a non member of Parliament is permitted to become a member of the
Government but only for a period of six month.
It must also be pointed out that due to national exigencies s.116 had to be made
use of thus in 1949, at the high of the K.N.D.O insurrections. General Ne Win (then as
Supreme Commander of the Armed Forces) was appointed Defense Minister and Dr. E
Maung (then a Judge of the Supreme Court) was appointed Foreign Minister. Again after
the A.F.P.F.L. split in 1958 when Thakin Nu decided to hand over the reins of
Government to General Ne Win, s.116 had to be used in a most unexpected way and
almost the entire Union Government came to consist of non-members of Parliament with
the exception of the Ministers for the States.46 General Ne Win was made the Prime
Minister and he picked his Ministers from non-politicians47

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 becomes the first “Prime Minister” in 1937.
45
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”
46
This is because the Constitution requires the Ministers for the States who are also the Heads of the States to be
members of Parliament (of either chamber). Such a situation was however unusual and was probably never in
the contemplation of the framers of the Constitution.
47
The difficulty however arose when it became clear that General Ne Win and his Cabinet would have to be
installed for more than 6 months. It was thought by some that under s.116 as there is no prohibition for the
renewal of the term of six months. The General and his Cabinet could resign a day or two before the expiry of 6
 52

distinction -

Cabinet Meeting -

Cabinet Ministers -

attend -

spirit -

collectively responsible -

envisaged -

sort -

serve -

permitted -

exigencies -

insurrections -

Defense Minister -

Foreign Minister -

reins -

split -

unexpected -

exception -

picked -

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.
 53

non-politicians -

3.7.2 Appointment

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

nominationof the Chamber of Deputies. It is thus clear that the President has no
discretion in this matter. In this respect Myanmar has followed closely the example of
Ireland (Art) and the English convention of the monarch calling the leader of the majority
party to form a Cabinet has been discarded and put in a more realistic form. It is thus
significant that Myanmar is different from India in this respect as the President is to
appoint the Prime Minister-apparently following the usual English convention. Pakistan
went over further in its Constitution by giving the President power to appoint the Prime
Minister in his direction.48
Regarding the other members of the Government, the President is to appoint them
on the nomination of the Prime Minister. Thus in this matter also the President has no
discretion. Nor does it seem that the Parliament will have any say in the matter as the
approval of the Parliament is not required.49
nomination -

discretion -

closely -

majority -

realistic -

apparently -

went over -

power to appoint -

48
See Art 37(3) of the late Constitution of Pakistan
49
See for example the Irish Constitution Art 13(1) where the approval of the popular chamber is required.
 54

approval -

required -

discarded -

3.7.3 Removal or Resignation

Coming to the question of removal the Constitution does not contain any specific
provisions for the removal of the Prime Minister. As the Prime Minister does not hold
office at the pleasure of the President the President cannot remove him Unlike the
President to can't also be impeached in Parliament. The obvious method therefore to
remove a Prime Minister is to bring down the Government by a vote of censure or no-
confidence motion in parliament. This of course can be done only if the Prime Minister
cases to retain a majority support in Parliament in which case he must resign in any event
(s.119)
As fair as the Ministers are concerned any of them can be removed from office by
the Prime Minister by requesting him to resign. If the Minister concerned to comply with
the request, his appointment is to be terminated by the President if the Prime Minister so
advises.50
As far as resignation is concerned the right of resignation is unfettered for the
Prime Minister only. Thus the Prime Minister may resign from office at any time by
placing his resignation in the hands of the President (s.117 (1). It is clear that the
President 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) wills

50
This again is not 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.
 55

always be serious as it automatically entails the resignation of all the other Members of
the Union Government. But to ensure continuity of Government, the Constitution
provides that the Prime Minister and other Ministers shall continue to carry on their
duties until their successors have been appointed (s. 120)
removal -

specific provisions -

hold -

pleasure -

impeached -

bring down -

vote of censure -

non-confidence motion -

retain -

resign -

concerned -

requesting -

terminated -

advises -

resignation -

unfettered -

alternative -

submission -
 56

agreeable -

repercussions -

entails -

continuity -

successors -

individual Minister -

3.7.4 The Special Position of the Prime Minister

Under the Constitution, the Prime Minister is the Head of the Union Government
(s. 56(1)). As has been seen it is he who in fact selects the Ministers and also dismisses
them. The stability of the Government depends on him. If he resigns, the whole
Government has to resign. It is also he who really selects the Attorney General, for the
President appoints him on the nominationof the Prime Minister (s.126). He can also
remove the Attorney-General in the same way as a Minister (s. 126). He can also remove
the Attorney-General in the same way as a Minister (s. 126). The Attorney-General also
has to resign when the Prime Minister resigns.
Moreover, it is the Prime Minister who has the main say in selecting the Judges of
the High Court and the Supreme Court for 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.
selects -

dismisses -

stability -

Attorney General -
 57

Prime Minister -

Union Government -

Judges of High Court -

Judges of Supreme Court -

resign -

selecting -

appointed -

put up -

approval -

3.7.5 Collective Responsibility

The English convention that government is collectively responsible to the popular

chamber is embodied in s.115 of the constitution and which states that the government is
collectively responsible to the Chamber of Deputies. There is however no express
provision for the individual responsibility of the Ministers to Parliament. As the
government is collectively responsible only to the Chamber of the Deputies, a defeat of
the government in the Chamber of Nationalities will have no effect on its tenure. It is also
implied that the Chamber of Nationalities can have to power to table a motion of ensure
or a non-confidence motion against the Union Government. Although the principle of
collective responsibility has been expressly embodied in the Constitution it is a matter of
some regret that it has not yet been fully appreciated. Collective responsibility means that
when a decision has been taken by the Cabinet. Every Cabinet Minister must not only
vote for it in Parliament and but also defend it outside Parliament. It also entails strict
 58

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 a the same time offered to
keep on Deputy Prime Minister U Ba Swe ,U Kyaw Nyein and several other Minister
who opposed him in the Cabinet up to one day before the meeting of the emergency
session of the Chamber i.e. 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 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.51 Some of the previous
differences of opinion in the Cabinet were also disclosed.
It should also be pointed out that the requirement in the Constitution that the Prime
Minister is to nominate on of the members of Parliament representing a State to be the
Minister for that State in consultation with the State Council concerned can sometimes
stand in the way of collective responsibility. Collective responsibility requires a Prime
Minister to pick his Ministers from persons in whom he can confide or trust. The
situation would be award where the majority of members of the State Council concerned
consist of opposition of party members. In such a case, although the Supreme Court has
expressed the view that the consultation clause is merely directive in nature and not
mandatory52 it would be against the spirit of the Constitution for 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

51
For this view see Dr. Maung Maung Burma‟s Constitution P. 135
52
See 1958. B.L.R. (S.C) P. 81
 59

Minister was appointed to all the Cabinet meetings as he would come to know all the
deliberations in the Cabinet.
embodied -

individual responsibility -

defeat -

tenure -

implied -

ensure -

non-confidence motion -

regret -

appreciated -

defend -

entails -

secrecy -

dissensions -

kept -

abeyance -

split -

test -

strength -

offered to keep -

opposed -
 60

emergency session -

unique situation -

scheming -

plotting -

headed -

previous -

differences of opnion -

disclosed -

representing -

consultation -

pick -

confide -

award -

opposition of party members -

directive -

mandatory -

consult -

existence -

functioning -

recommend -

deliberation -
 61

3.8 The Union Parliament

The Union Parliament is to consist of the President the Chamber of Deputies and
the Chamber of Nationalities (s.65)
President -

Chamber of Deputies -

Chamber of Nationalities -

3.8.1 The President and Parliament

The President has apparently been made to belong to Parliament on the English
principle of “King in Parliament”. This principle has also been followed in the other
Constitutions like that of Ireland, India and Pakistan.53 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
procedures are that the President is to sign the Bill passed by both Chambers within 7
days of the date of presentation (s. 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 country intention is expressed
(s.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.54 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.
apparently -

53
In fact this principle had been introduced by the British in the Government of Burma Act. 1935. where His
Majesty represented by the Governor was part of the legislature(s.17)
54
Since Independence in 1948 only once has 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.
 62

necessity -

promulgation -

date of presentation -

becomes -

publication -

official gazette -

come into force -

contemplates -

veto power -

functions -

formal -

obligatory -

3.8.2 Bicameralism

The legislature in Myanmar is a bicameral legislature. In providing for a bicameral

legislature the constitution was also following the tradition which existed under the
Government of Burma Act, 1935. Under that Act, the legislature had two houses; the
House of Representatives and the Senate. The House of Representatives the Lower House
was more or less on an elected basis.55Regarding the Senate, half of the members were to
be elected by the House of Representative and the remaining half were to be chosen by

55
For the composition of the House of Representative under the Government of Burma Act See: clause. 3 of the
third Schedule of the Government of Burma Act 1935
 63

56
the Governor in his discretion. The Senate was more or less meant for men of wealth
distinction or learning.57
Apart from following tradition the framers of the constitution had also in mind the
fact that all federal constitutions possessed a bicameral legislature.58
The composition of the Chamber of Nationalities must have personated a problem
to the framers of the Constitution. Being then overwhelmed by the idea of democracy it
was decided that there should be no nominated members of it, though this is by no means
uncommon in many countries which are also admirers of democracy. At the same time it
was clear that the same basis of electing members by the number of population would not
be fair on the minority races which head a relatively small population compared to the
Myanmar. Thus a system of weighting which would ensure that the minority races to be
in the majority in the Chamber of Nationalities was finally evolved.59
bicameral legislature -

tradition -

legislature -

House of Representatives -

Senate -

elected basis -

remaining -

Governor -

wealth -

56
Clause 19. Ibid
57
Clause 12. Ibid
58
for example see the speech of U Chan Htoon the Constitution Adviser in his speech to the Constitution Assembly
on 4th August 1947. Note however that later an exception to the rule was created by the Constitution of Pakistan
in 1956 when though a Federation only a unicameral legislature was provided for.
59
It is interesting to note that the literal translation of the term “Chamber of Nationalities” in Myanmar would be
“Chamber of Races”
 64

distinction -

framers -

federal -

possessed -

overwhelmed -

idea of democracy -

uncommon -

admirers -

fair -

minority races -

relatively -

weighting -

evolved -

3.8.3 Composition

Under s. 83(1) of the Constitution the Chamber of Deputies shall be composed of

members to represent constituencies determined by law.60 This subsection (2) then goes
on to say that the members of the Chamber of Deputies shall be as nearly as practicable
twice the number of members of the Chamber of Nationalities. Although the Constitution

60
This law is the Parliamentary Election Act 1948 which was enacted shortly after the Constitution came into
force.
 65

envisages that the actual number of members of the Chamber of Deputies can fixed by
law it nonetheless stipulates that it shall not be fixed at less than one member for each
100,000 of the Population.
Under the Parliamentary Elections Act 1948 s. 3 the total number of members for
the Chamber of Deputies is fixed at 250 and is to be sub divided as follows:-
(a) 25 seats for the representatives of the Shan State
(b) 7 seats for the representatives of the Kachin State.
(c) 6 seats for the representatives of the Chin State
(d) 2 seats for the representatives of the Karenni State.
(e) 7 seats for the representatives of the Karen State.
(f) 203 seats for the rest of the Union of Myanmar.
The total number of seats for the Chamber of Nationalities is fixed in the
Constitution itself at 125 seats (s.87). The Sub-division is made in the 2nd Schedules of
the Constitution as follows:-
(a) twenty-five seats shall be filled by representatives from the Shan State:
(b) twelve seats shall be filled by representative from the Kachin State
(c) eight seats shall be filled by representatives from the Special Division of
the Chins;
(d) three seats shall be filed by representatives from the kayah State;
(e) fifteen seats shall be filled by representatives from the Karen State:
(f) sixty-two seats shall be filled by representatives from Karen State
Thus it will be seen that 63 seats are given to the representatives of the States.
composed -

constituencies -

determined -

nearly -

practicable -
 66

envisages -

fixed -

sub divided -

seats -

Sub-division -

filled -

representative -

special Division of the Chins -

3.8.4 Election of Parliament

Elections to both Chambers of Parliament are based for the first time on the
system of universal adult suffrage. Thus every citizen above 18 is qualified to vote in the
elections to both Chambers s.76 (2)) discriminations in the right to vote on grounds of
sex, race and religion are also prohibited (s. 76(2)).61
Voting is to be by secret ballot (s.73 (5)).62
Regarding the time for the elections s. 84(1) states that the general elections for
members of the Chamber of Deputies shall take place not later than 60 days after the
dissolution of the Chamber. S.88 (2) states that the general election for the Chamber of
Nationalities shall be completed not later than the dissolution. As s. 84(2) in turn provides
that the Chamber of Deputies shall meet within 60 days from the polling day, it means
that the election of the Chamber of Nationalities must be completed within a period not
more than 75 days from the polling day for the elections to the Chamber of Deputies. In

61
This is subject to provide that members of a religious order may be debarred from voting. Thus in the
Parliamentary Elections Act, s 27.Priests of any religion or members of a religious order are not entitled to vote.
62
For other qualification and disqualifications regarding the right to vote see chapter XXX2 (2.18+29) of the
Parliamentary Elections Act. 1948
 67

other words it is clear that the elections to the Chamber of Nationalities will be held only
after the elections to the Chamber of Deputies.
universal -

suffrage -

discriminations -

ground -

sex -

race -

religion -

prohibited -

secret ballot -

take place -

dissolution -

polling day -

3.8.5 Qualification of Members of Parliament

Regarding the qualifications for membership to the Chamber of Parliament every

citizen above 21 years of age is eligible. (s.76). Provided that he has not been placed
under any disability or incapacity by the constitution or by law, under s.74 of the
constitution a person who is a citizen of a foreign power or owes allegiance to one; or is
an undercharged bankrupt or insolvent: or is of unsound mind: or has been found guilty
of election malpractices: or has been convicted of a serious offence, cannot become a
Member of Parliament. As far as disabilities placed by law are concerned, they are
 68

mainly to be found in the Parliamentary Elections Act, 1948. For example, a priest or a
member of a religious order cannot become a Member of Parliament. In 1956, an
interesting question arose before the Elections Tribunal whether a Pastor of the Baptist
Church who has relinquished his post and taken to worldly pursuits still remains a
“member of a religious order”. The tribunal rejected the doctrine of “Once a Minister
always a Minister”, and held that the applicant was qualified to be a parliamentary
candidate.63
qualifications -

membership -

Chamber of Parliament -

disability -

incapacity -

owesallegiance -

undercharged insolvent -

bankrupt -

unsound mind -

guilty -

malpractices -

convicted -

serious offence -

concerned -

Parliamentary Elections Act -

63
See Saw Donation U San Yin, Election Petition Case No. 1 of 1956Tribunal‟s report in Burma Gazette Part 1
October 6. 1956
 69

priest -

religious -

Elections Tribunal -

Pastor -

Baptist Church -

relinquished -

pursuits -

rejected -

applicant -

3.8.6 Speakers

Under s.67 of the Constitution each Chamber is to have Speaker and Deputy
Speaker who are to be members of that Chamber. They are to be chosen by the Chamber
concerned and may also be removed by the Chamber concerned by a majority vote. So
far no Deputy speakers are regulated by a special Act passed in 1952.
The main function of the Speakers is to see that the rules and procedure of the
chamber is enforced and followed. special provisions is made in s. 82(2) to just the
jurisdiction of the Court with regard to the Speakers in exercising the powers vested in
them under the constitution for regulating procedure or the conduct of business or for
maintaining order in the Chambers.
Other functions are also imposed on them by the Constitution. Thus as we have
seen when there is a temporary vacancy in the office of the President the powers and
functions conferred on the Preside …are to be exercised or performed by a Commission
consisting of the Chief Justice of the Union and the Speakers of the two Chambers of
 70

Parliament. If for some reason a Speaker is unable to act his place is been filled in by the
Deputy Speakers concerned (s.64).
Moreover, the Speakers are to play a prominent part in the removal of Judges of
the High Court and Supreme Court and the Auditor General. This is because the
constitution provides that a charge against them must be made in either Chamber of
Parliament, and in all cases there is to be a Special Tribunal and the Speakers of the two
chambers are to be members in it.
Speaker -

Deputy Speaker - -

chosen -

Chamber -

regulated -

passed -

just -

maintaining order -

imposed -

temporary vacancy -

conferred -

prominent -

Auditor General -

charge -

Special Tribunal -
 71

3.8.7 Parliamentary Privileges

The framers of the constitution were apparently aware that Parliamentary Privilege
is necessary condition of every free legislature. Thus the constitution expressly lays down
in s.68 (1) the privileges of the Union Parliament in two matters (1) Freedom of speech
and (2) publication of speeches and proceedings. It is interesting to note that the
provision of s.68 (1) is the same as the combined provisions of Art: 105 Clauses 1 and 2
of the Indian Constitution.
Regarding the freedom of speech in Parliament, it should be noted that the
constitution itself says in s. 68(1) that this is subject to the rules and procedure relating to
Parliament and to the provision of the constitution.64 However the privilege given is quite
wide apparently no action would lie against a Member of Parliament of defamation
obscenity or the like. Moreover although in England the freedom of speech in Parliament
is considered to relate only to words spoken by a member in the performance of his
duties.65 The appearance of the words “anything said ……..by him Parliament” in the
constitution seems to be wide enough to cover even conversations on private affairs
provided it is said within the chamber or any committee thereof. It is however clear that
the words “anything said or any vote given by him” do not give any community from any
criminal act committed within the walls of the chamber.
The last part of s.68 (1) specially details with the publication of any report paper
votes or proceedings by or under the authority of a Chamber of the Parliament. It thus
seems that immunity covers only publications by the House or under its authority and that
publication by a member privately will come under the ordinary law. In other words the
privilege relating to freedom of speech does not extend to publications outside the House
except though the medium of official reports. Thus a Member of Parliament, who

64
Thus s.81 expressly prohibits discussions in Parliament with respect to the conduct of any judge of the Supreme
Court or the High Court in the discharge of his duties.
65
See Wade and Phillips, Constitutional Law .p. 111
 72

publishes his speech separately from the debate of his House, would be fully liable for
any defamatory statement made by him.66
S.68 (2) deals with the privileges of Parliament in other matters. It states that they
shall be defined by an Act of Parliament in other matters. It states that they shall be
defined by an Act of Parliament and until so defined shall be such as were immediately
before the commencement of this Constitution enjoyed by members of the Legislature of
Myanmar.
apparently -

aware -

Parliamentary privilege -

lays down -

free legislature -

Freedom of Speech -

publication -

proceedings -

speeches -

wide -

defamation -

obscenity -

performance -

appearance -

66
Note however that the publication of an unofficial report of the proceedings in the Chamber even through made
a private person, would still be covered by “qualified privilege”. The Myanmar law on “qualified privilege” as a
defense to the tort of defamation is substantially the same as in English law. As far as official reports of either
Chamber are concerned the Constitution expressly states that they are absolutely privileged.
 73

conversations -

community -

any criminal act -

committed -

walls -

report paper votes -

immunity -

privately -

ordinary law -

extend -

official reports -

publishes -

separately -

debate -

fully liable -

defamatory -

immediately -

commencement -

Regarding the privileges enjoyed by the previous legislature in Myanmar members

of the legislature were exampled from the liability to serve as juror or arrest or detention
in prison under civil process during sessions of the legislature or any of its committees of
which they were member. However under the Government of Burma Act, 1935 s.27(3).
The Legislature had no power to commit for contempt just as colonial legislatures do not
 74

possess this power. Thus is seems that the Union Parliament did not possess these powers
until the Parliament and Members, Powers & PrivilegesAct 1959, was passed.
It should be mentioned that the absence of a well defined Act until 1959 had lead
to controversial questions of privilege from time to time. For example in 1956, during the
budget session a member of the opposition from the Chamber of Deputies was arrested in
the Chamber precincts for alleged treasonable activities: there was a cry from his friends
that privilege head been infringed. The Government however explained the nest day that
there was no question of privilege when criminal offences were concerned. 67 Thus a
Committee of Privileges was appointed in 1957.
Fortunately, an Act of Parliament was passed in 1959 referred to above. By that
Act, the powers and privileges of the Parliament and its members were attempted to be
more clearly defined.68
The Act substantially reproduces the privileges enjoyed by members of the Union
Parliament before the Act came into force which as already indicated were enjoyed by
members of the Legislature before Independence. For example a Member of Parliament
or an officer of Parliament is exempted from the liability to serve as a juror (s.9). A
Member of Parliament is also exempted from arrest or detention in prison under civil
process during sessions of Parliament or any of its Committee of which they are members
(s.10). Also, during sessions, a member of Parliaments is exempted from being called as a
witness before a civil or revenue Court.
On interesting feature of the Act is that it not only prohibits the serving of
summons, execution of warrant etc. in civil matters as Member of Parliament within the
precincts of the House during sessions or Committee Meetings, but also prohibits the
serving of summons execution of warrants etc. in criminal matters in similar
circumstances of Members of Parliament or officers of Parliament (s.12).
The provision to s.12 however state that the above things can be done through the
proper authority specified in the rules of the respective Chambers.

67
Dr. Maung Maung Burma‟s Constitution P. 128
68
The proper authorities are apparently the Speakers of Deputy and Speakers of the Respective Chambers.
 75

Another interesting feature of the Act is that it now for the first time recognizes
the offence of contempt of Parliament as a punishable offence. Section 18 enumerates the
matters which constitute contempt of Parliament. Under s.27, a person found guilty of
such an offence may be punished up to 6 months simple imprisonment or a fine of
K.1000/- or both.69
enjoyed -

previous legislature -

liability to serve -

juror -

arrest -

detention -

contempt -

colonial legislature -

possess -

Powers & Privileges Act -

absence -

well defined -

controversial -

budget session -

precincts -

alleged -

69
It appears that for such an offence punishment is not meted out by the Parliament itself as in the case of the
British Parliament. Procedure appears to be that the Secretary of the Parliament by order of the proper authority
(the Speaker) lodges a complaint. The case is then to be tired by the District magistrate or a Magistrate holding
first class powers
 76

treasonable -

infringed -

referred -

attempted -

reproduces -

indicated -

exempted -

sessions of Parliament -

called -

witness -

revenue Court -

feature -

execution of warrant -

proper authority -

specified -

contempt -

punishable -

imprisonment -

3.8.8 Sessions

Under s.66 there is to be a session of Parliament every year with not more than 12
months in between two sessions. However, normally Parliament meets twice a year once
 77

in August or September to vote upon the budget been again in February. Each session
lasts about a month. There has however been frequently complaint by the opposition that
Parliamentary time is too short and an attempt was made in 1957 to amend. s.66 to ensure
that there should be at least 150 days of Parliamentary session every year. The proposal
was however defeated by the Government.70
session of Parliament -

twice a year -

vote -

lasts -

frequently -

complaint -

opposition -

attempt -

amend -

ensure -

proposal -

defeated -

3.8.9 Law making

Under s.90 of the Constitution “the sole and exclusive powers of making laws in
the Union shall be vested in the Parliament”. The provision to the section however adds
that the power may be delegated to make rules and regulations under an Act, but the rules
and regulations so made must be laid before Parliament for approval.
70
The Judicial Minster pointed out in opposing the amendment that three sessions were called in 1948 and also in
1947. The proposal for amendment was however not without merit for due to lack
 78

The law making powers of the Parliament is defined in s.92. The law making
powers covers all subjects except those assigned exclusively to the State councils. The
subjects assigned exclusively to the State Councils come under the State Legislative list;
which List II of the Third Schedule of the Constitution. Thus the Legislative power of the
Union Parliament covers all other matters. In other words, the “reserve of power” is with
the Union Parliament. However for greater certainly the Constitution provided that the
Legislative authority of the Union Parliament shall cover all matter contained in the
Union Legislative List; which is List I of the Third Schedule of the Constitution.71
Though the matters coming under the state Legislative list are the exclusive
jurisdiction of the State Councils, the Union parliament is given the powers to make laws
for a State or any part thereof in respect of any matters enumerated in the State
Legislative List where the President has proclaimed a State of Emergency ((s.94)1). But
such laws shall case to have effect on the expiration of a period of six months after the
Proclamation has ceased to operate (s.94 (4)).
One interesting feature of the Union Parliament is that either Chamber of
Parliament can initiate bills in respect of matters coming under the Union Parliament. The
only exception however is that Money Bills shall be initiated only in the Chamber of
Deputies. This is the result of following the British convention that Money Bill shall
originate only in the popular Chamber. 72
When a bill is initiated in the Chamber of Deputies and is passed by it. It shall be
sent to the Chamber of Nationalities. The Chamber of Nationalities may amend the bill
(except in the case of a Money Bills) and send back to the Chamber or Nationalities and
is passed by it, then it shall be sent to the Chamber of Deputies, The Chamber of
Deputies may amend the bills and send it back to the Chamber of Nationalities for
consideration.

71
At first, there were three lists namely the Union Legislative list the State Legislative List and the Concurrent
Legislative List.
72
This principle and already been embodied in the Government of Burma Act. 1935. s.63. Thus no “Financial
Bill” could be introduced in the Senate.
 79

Where a bill is passed by one chamber and accepted by the other chamber the bill
is deemed to have been passed by both chamber of Parliament (s.101) accepted by the
other chamber. Thus provision is made in s. 109 that if one chamber passes a bill 73 and
the other chamber where the bill originated will not agree the President shall convene a
joint sitting of the two chambers: present and voting vote in favor of it.
sole and exclusive power -

vested -

adds -

delegated -

rules and regulations -

covers -

assigned -

reserve of power -

State Councils -

Union parliament -

proclaimed -

State of Emergency -

expiration -

Proclamation -

ceased to operate -

initiate -

Money Bills -

73
Except a Money Bill which must be initiated by the Chamber of Deputies.
 80

send back -

consideration -

originated -

convene -

joint sitting -

3.8.10 Money Bills

As has been indicated the Chamber of Nationalities has the same law making
powers as the Deputies except in the case of Money Bills. Thus a money bill must
originate in the Chamber of Deputies it shall be sent to the Chamber of Nationalities for
its “recommendation” (s.103). However once a Money Bill is passed by the Chamber of
Deputies it shall be sent to the Chamber of Nationalities cannot reject a Money Bill nor
can it directly amend it. This provision for making recommendations is obviously
inspired by the Australian and Irish Constitutions. The Constitution of India (Art.109.
clause (2)) also contains a similar provision.
The bill shall then be returned to the Chamber of Deputies within 21 days with
recommendations, if any. The Chamber of Deputies has the power of accepting or
rejecting all or any of the recommendations, if the bill is not returned within 21 days. The
effect is also the same if the bill is returned within 21 days but with recommendations
which the Chamber of Deputies cannot accept (s.105).
A Money Bill is defined in s.106. The power of certifying a bill as a “Money Bill”
is given to the Speaker of the Chamber of Nationalities. By passing a resolution at a
sitting at which not less than 2/3rd of the total members are present and request the
president to refer the question whether the bills is a Money Bill or not to a committee of
Privileges. The President may or may not accede to the request in his discretion. If he
accedes to the request then a committee of privileges is to be appointed and the question
 81

shall then be referred to it. The committee is them to report its findings within 21 days to
the President. The decision of the President in his discretion on such report is final.
If the President does not accede to the request of the Chamber of Nationalities the
certificate of the Speaker of the Chamber of Deputies shall stand confined (s.108).
indicate -

Chamber of Nationalities -

Deputies -

Money Bills -

recommendation -

reject -

inspired -

returned -

Chamber of Deputies -

power of certifying -

at a sitting -

committee of Privileges -

accedes -

request -

referred -

report -

findings -

certificate -
 82

stand confined -

3.8.11 Other Functions

Besides its legislative functions, the Parliament has other important functions. For
example, the President is to be elected by both chambers of Parliament in Joint session
(s.46). Again on the initiation of either Chamber of Parliament the President may be
impeached (s.54). The Judges of the Supreme Court or the High Court can also be
appointed only after the approval of both Chambers of Parliament in joint sittings (s.
140). The Auditor General is an also be appointed only with the approval of both
chambers of Parliament (s.129). The impeachment of these personages is also to be
initiated in either Chamber of Parliament. Also as we have seen the Prime Minister is to
be nominated by the Chamber of Deputies.
legislative functions -

elected -

Chambers of Parliament -

initiation -

impeached -

appointed -

joint sittings -

Auditor General -

personages -
 83

3.9 The Union Judiciary

3.9.1 The Judiciary under British Rule

The Judiciary in Myanmar under British Rule was notable for two features: (1) it
was made independent of the Executive and the Legislature and (2) it was a single unified
system with the High Court of Judicature at the apex.74
Thus under s.8 (2) of the Government of Burma Act, the Chief Justice and Judges
of the High Court were to be appointed not by the Prime Minister or by the Governor, but
by his majesty by warrant under the Royal Sign Manual. It was only temporary or
additional Judges who could be appointed by the Governor in his discretion. Nor could
the judges be removed by anyone in Myanmar. They were to be removed by His Majesty
by warrant under the Royal Sign Manual on the ground of misbehavior or of infinity of
mind of body. If the Judicial committee of the Privy Council: on reference begin made to
them by His majesty report that the judge ought on any such ground to be removed.
It is also significant to note that although the Governor could by Proclamation take
over the powers of any authority in Myanmar including the legislature under the
Government of Burma Act s. 139. There was to leave the High Court untouched.
notable -

unified -

High Court of Judicature -

apex -

Government of Burma Act -

Chief Justice of the High Court -

74
In certain cases appeals could be filed against the judgment of orders of the “High Court in the Privy council in
England which was the final Appellate 130 court for the British Empire.
 84

Judges -

majesty -

temporary or additional Judges -

warrant -

misbehavior -

infinity of mind -

Privy Council -

removed -

significant -

Proclamation -

take over -

untouched -

3.9.2 The Drafting of Provisions Relating to the Judiciary

The framers of the constitution accepted the ideals of the Independence of the
Judiciary but the Judiciary with its traditions its aloofness and its privileges was viewed
with some suspicion. Thus in drafting the constitution there was an attempt to combine
independence and tradition with some elements of democracy such as accountability to
the people. It was therefore interesting to note that in the draft of the constitution
proposed by the AFPFL convention the following provisions were be found.
i.The Judges of the Supreme Court are to be elected by the Union Assembly in joint
sitting.
ii.A judge of Supreme Court shall hold office for a period of 10 years...
 85

Thus the original intention was not only to elect judges but also to keep them for a
limited period in other words there was to be no security of tenure.
Fortunately, this idea, based on over-enthusiasms for democratic principles did not
go unchallenged before the Constitution Committee of the Constituent Assembly,
Eventually a compromise formula was suggested and agreed upon and that was the Prime
Minister as the Head of the Government in consultation with the Chief Justice should
choose the candidates and submit their names to the Parliament for approval. When
approved by Parliament they were to be appointed by the President. Thus there was to be
a semblance of the election of judges by the people through their representatives in
Parliament. It was also agreed that there was to be security of tenure and appointments of
Judges should be made pension able.
It should however be pointed but that the consultation clause requiring the
President of consult the Prime Minister and the Chief Justice of the Union in the
appointment of Judges75 were deleted on the even of Independence on 3rd January, 1948.
The reason given was that the wording of the relevant section as it then stood would read
as though the President must first consult the Prime Minister (and the approval of
Parliament. It the Chambers rejected the proposal then the result would be embarrassing76
ideals -

aloofness -

suspicion -

accountability -

Union Assembly -

joint sitting -

75
In the appointment of the Chief Justice of the Union the Prime Minister alone would be consulted.
76
See the speech of U Chan Htoon, Constitutional Adviser Constituent Assembly Proceedings vol. 4 No. 1 January
3rd 1948.pp. 16-19. The dropping of consultation clauses have however tended to rise controversy after
Independence. The section now real as if the advice of the Chief Justice of the Union need not be taken or if
tendered accepted.
 86

original intention -

elect -

keep -

limited period -

security of tenure -

over-enthusiasms -

unchallenged -

compromise formula -

choose -

submit -

semblance -

pension -

deleted -

rejected -

proposal -

embarrassing -

3.9.3 General Features of the Union Judiciary

Section 133 of the Union Constitution stated that justice throughout the Union
shall be administered in courts established by the constitution or by law and by judges
appointed in accordance therewith. These Courts shall comprise of Courts of First
Instance and Courts of Appeal. The Courts of First Instance are to include the High Court
(s.134). The Court of Final Appeal is to be called “the Supreme Court” (s.136).
 87

The significance of the provisions is the Constitution relating to the Union

Judiciary is that the British system of a unified judicial system is still maintained. In spite
of the federal form of the constitution,77 the constitution however makes two noteworthy
changes. Firstly as mentioned above “the Supreme Court” has been established as a final
Court of Appeal more or less to take the place of the Privy Council of England which was
hitherto the Court of final Appeal for cases from Myanmar Secondly in view of the
federal nature of the Constitution both the Supreme Court and the High Court have the
added function of dealing with disputes arising between the Union and a until of the
Union or between different units of the Union.
It should also be noted that the Constitution specifically deals with only the High
Court and the Supreme Court. Even the many important matters relating to these two
highest Courts in the land are not dealt with in the Constitution as in the case of the
Indian Constitution of Pakistan. They are to be found in the Union Judiciary Act 1948
which came into force together with the Constitution on 4th January 1948.
As far as the other Courts are concerned provisions relating to them are to be
found in the Courts Act. Thus under this Act, Courts subordinate to the Supreme Court
and the High Court is the Distracts Court: the Additional District Court: the sub
Divisional Court and the Township Court.78 Decrees from the Township Court and Sub-
Divisional Court are appeal able to the District Court Decrees from the Additional
District Court and District Court are appeal able to the High Court. For Yangon City
there is a special Civil Court namely the Yangon City Civil Court which has concurrent
jurisdiction with the original side of the High Court.79
throughout -

77
India and Pakistan also continued to adopt the unified system after independence. In this connection see A.
Gledhill. The British Commonwealth, Vol.8. Pakistan p. 144 Mr. Gledhill is of the view that in a federal
constitution it is particularly necessary to provide proper safeguards for the firmness and independence of the
Judiciary and that in itself is one reason why judicial power in a federation should not be distributed in the same
way as legislative or executive powers. It is therefore better that there should be a single system of courts with
the Supreme Court at its apex and that is judgments in all matters should be binding on all courts.
78
These Courts have also criminal jurisdiction.
79
There is however a difference in the pecuniary jurisdiction Suits over the value of K 10000 are to be tried only
by the High Court.
 88

administered -

High Court -

Supreme Court -

Courts of First Instance -

Courts of Appeal -

unified -

maintained -

noteworthy -

hitherto -

federal nature -

disputes -

different units -

specifically -

Union Judiciary Act -

Distracts Court -

Additional District Court -

Sub Divisional Court -

Decrees -

appealable -

Special Civil Court -

concurrent jurisdiction -
 89

3.9.4 Judges

Under s.134 (b) of the constitution the Head of the High Court is to be called “the
Chief Justice of the High Court”. The constitution does not fix the number of puisne
judges of the High Court. This is done by s.13 of the Union Judiciary Act which states
that the number of puisne judges shall not exceed 1080
Head -

Chief Justice of the High Court -

fix -

puisne judges -

exceed -

3.9.4.1 Judges of the Supreme Court

Regarding the Supreme Court s.136 (2) of the constitution provides that the Head
of the Supreme Court shall be called “the Chief Justice of the Union.” The Chief Justice
of the Union is to take precedence over all other judges in the Union of Myanmar. The
constitution again does not fix the number of judges for the Supreme Court. This is done
by s.3 of the Union Judiciary Act which states that the number of pusine shall not exceed
four81
The salaries of the judges of the High Court and the Supreme Court are laid down
in the Union Judiciary Act. Under s.32 the Chief Justice of the Union is to receive a
monthly salary of K.3,500 per month and the other judges of the Supreme Court K.2,500
per month. The constitution however lays down that the salary of a judge of the High
Court or Supreme Court shall not be wearied to his disadvantage after his appointment

80
At present there are 8 puisne judges of the High Court
81
At present there are 3 puisne judges of the Supreme Court.
 90

unless he voluntarily agrees to any reduction in his salary in the event of general
economy or retrenchment in relation to all the services of the Union.82
Section 142 of the constitution lays down the minimum qualifications for the
Judges.
The first preliminary qualification of a Supreme Court Judge is that he must nor
only be a citizen. But he must be a citizen who was born or whose parents were born in
any of the territories included within the Union or in the alternative he must be citizen of
five years standing.83 Regarding the other “legal” qualifications he must be a judge of the
High Court of five years standing or an Advocate of standing of the High Court of at least
fifteen years standing. The Chief Justice however must be an Advocate.
Chief Justice of the Union -

precedence -

fix -

salaries -

receive -

monthly -

wearied -

disadvantage -

voluntarily -

reduction -

retrenchment -

services -

82
This did happen in 1949-50 when the salaries of all government servants were reduced because of the national
crisis caused by the insurrection. The judges also surrendered voluntarily part of their salary.
83
This requirement has probably been inserted to ensure that a person appointed as judge of the Supreme Court is
not only one who understands the country but also understands the people and the institution of the country.
 91

minimum qualifications -

preliminary -

Advocate -

3.9.4.2 Judges of the High Court

As for High Court judges the constitution merely requires that he must be a citizen
regarding his other “legal” qualifications he must be an advocate of 10 Years standing or
has at least for five years held judicial office in Myanmar of in the Union. Not inferior to
that of a District and Sessions judge or Chief judge of the Yangon City Civil Court. The
Chief Justice however must be an Advocate.
It is thus noteworthy that both the Chief Justice of the Union and the Chief Justice
of the High Court are to be Advocates. This provision has probably been inserted because
the framers of the constitution may have been influenced by the fact that all judges in
England are barristers. And that this is one of the factors which have contributed to the
supremacy of the Law in England. No doubt this belief is shared in many quarters but in
practice it has led to difficulties. The question whether this provision should be deleted in
likely to be considered.
As to the appointment of judges the constitution provides (s.140) that they shall be
appointed by the President with the approval of both the Chambers of Parliament in joint-
setting. In other words the Union Government usually commands a majority in the
Parliament it is therefore unlikely that the Parliament would disapprove of a person
nominated by the Union Government and once the parliament approves the president has
no alternative in the matter but to appoint. Thus in effect it is the Union Government the
Prime Minister and or the Judicial Minister who actually selects the candidates.84
It should however be noted that where there is a temporary vacancy in the office
of a judge of the High Court the President may in his discretion appoint a person duly

84
Although the consultation clause requiring the Chief Justice of the Union to the consulted has been deleted, the
practice seems to be that he is consulted whether his advice is accepted or not if of course another matter.
 92

qualified to act as a judge of the Court (s.147).85 Such an appointment ill also be
terminated by the president in his discretion.
requires -

advocate -

held -

judicial office -

inferior -

District and Sessions judge -

Yangon City Civil Court -

Chief Justice -

probably -

inserted -

influenced -

barristers -

contributed -

supremacy -

belief -

deleted -

joint-setting -

command -

85
The principle behind this section seems to be inconsistent with that of s.140 where the selection lies with the
Union Government. This section probably owes its existence to s.83 of the Government of Burma Act. 1935.
Where the Governor in his discretion could appoint temporary or additional judges. It is also likely s.147 will
be re-considered by the constitution Revision Committee.
 93

unlikely -

disapprove -

nominated -

alternative -

Judicial Minister -

select -

candidate -

temporary vacancy -

duly qualified -

terminated -

3.9.4.3 Security of tenure

The judges of the High Court and Supreme Court enjoy security of tenure subject
of course the age limits of 60 and 65 respectively and subject further to resignation
retirement or removal.
Under the constitution (s.143) a judge of the Supreme Court or the High Court,
may by resignation under his hand addressed to the president resign his office. It thus
seems that in this matter the president has no option but to accept the resignation.
Retirement of judges of the High Court and Supreme Court is allowed under the
Union Judiciary Act s.34. Provide the consent of the president is obtained86
The removal of judges, being an important matter is dealt with in detail by the
constitution itself. Under s.143 (2) a judge of the Supreme Court or of the High Court can
be removed from office for proved misbehavior or incapacity. The charge can be

86
At first there was no provision of for retirement. Thus was inserted by as a provision to s.34 of the Union
Judiciary Act. by Act XXVIII 1954
 94

preferred in either Chamber of Parliament provided that a proposal to prefer a charge is

signed by not less than 1/4th of the total membership of that chamber. The proposal is
then adopted if it gets the support of the majority of members present in that chamber.
After the adoption of the proposal the charge is investigated by a special tribunal. Where
the charge relates to that of a judge of the Supreme Court the Tribunal is to consist of the
president (or a person appointed by him in his discretion) and the two Speakers. Where
the charge relates to that of judges of the High Court it is to consist of the Chief Justice of
the Union and the two Speakers. The Tribunal is then to consider the charge and report to
the chamber by which the charge was preferred. The report is then to be considered by
both chambers in joint-setting except in cases where the Tribunal finds unanimously that
the charge has not been proved in which case the finding shall be final. After the
chambers in joint-sitting have considered the charge a vote is to be taken. The Judge-
concerned will be removed by the president only if the majority of members present and
voting at the joint sitting declare the charge to be proved (s. 143).
It will thus be seen that although the removal of a judge depends mainly on the
parliament the procedure seems to be cumbersome enough to prevent a miscarriage of
justice.87 Fortunately however no attempt has yet been made to remove a judge of the
High Court or the Supreme Court.
security of tenure -

resignation -

retirement -

addressed -

resign -

option -

87
The procedure is not dissimilar to that laid down in the Constitution of India. See Art 124 (4)& (5) See also Art
35(4) of the Irish Constitution.
 95

Union Judiciary Act -

obtained -

detail -

proved -

misbehavior -

incapacity -

preferred -

proposal -

investigated -

Special tribunal -

considered -

joint-setting -

unanimously -

finding -

majority of members -

cumbersome -

miscarriage of justice -

attempt -
 96

3.9.5 The Supreme Court

Under s.148 of the Union Constitution as well as s.4 of the Union Judiciary Act,
the Supreme Court is to be a Court of Record. It is also to have supervisory jurisdiction
over all other courts in the Union. It is to sit in the capital city in Yangon. It can also sit in
other places if the president of the Union wishes so. So far the Supreme Court has sat
only in Yangon.
As a Court, the Supreme Court must always have quorum of three judges. 88
Although the number of puisne judges is limited to 4 the number has not so far exceeded
three. It may sometimes happen that for various reasons the necessary quorum of three
may not be available. To meet such contingency provision is made in s.146 of the
constitution to permit the Chief Justice and Judges of the High Court to sit on the
Supreme Court Bench: if so requested. Moreover s.34 of the Union Judiciary act also
provides for retired Supreme Court Judges to sit on the Supreme Court Bench if so
requested.
As already mentioned the Supreme Court is the Court of final appeal. Thus the
Supreme Court is to have appellate jurisdiction from all decisions of the High Court and
shall also have appellate jurisdiction from such decisions of other courts as may be
prescribed by law (s.136(3)). Appeals from the High Court of any Act, 89Section 6 of the
same Act, further lays down that notwithstanding anything contained in s.5 the Supreme
Court may in its discretion grant special leave to appeal from any judgment decree or
final order of any court in any civil, criminal or other case.
Besides its function as a court of final appeal the Supreme Court other important
functions. Firstly there is the function given to the Supreme Court under s.25 of the
constitution to issue writ of habeas corpus, mandamus, certiorari, prohibition and
quo-warranto for the enforcement of fundamental rights.

88
Except in interlocutory matters where a single judges sits in Chambers See s.10 of the Union Judiciary Act.
89
The provisions of this section is similar to that of Art 133 of the under Constitution.
 97

Section 25, however has not been vary happily worded as the Supreme Court
alone is mentioned in the section. It has been interpreted by the High Court itself to mean
that the High Court has no power to issue writ90 although it did have such as power under
British Rule. Again s.25 obviously refers to the safeguarding of fundamental right only.91
Most of these fundamental rights refer specifically to citizens. It has therefore been
92
argued that the writ jurisdiction and the furthermore only citizen can invoke it. The
Supreme Court has however held that under the powers of super intendance conferred on
it over all courts in the Union, its writ jurisdiction is not confined to fundamental rights.
Moreover the word "court" in this context is to be given a liberal interpretation and
therefore includes quasi-judicial authorities. It has also hold that the writ jurisdiction can
be invoked by foreigners also.
Secondly there is the advisory role of the Supreme Court under s.151 of the Union
Constitution93. The President may refer an important question of law to the Supreme
Court for consideration. The Supreme Court is then to hear the case and deliver judgment
in open court dissenting opinions are allowed. The Supreme Court is then to submit a
report to the president in accordance with the opinion delivered by it. So far 9 references
have been made to the Supreme Court since independence. Only in one did the Supreme
Court not given an opinion and that was in the references made to it by the president in
1960 as to whether the restriction of commission agents to Myanmar national only
offended the provisions of the Nu-Attlee Agreement which to some extent contained
safeguards for British commercial interests in Myanmar. The Supreme Court did not give
an opinion as it accepted the contention of the Attorney General that the question referred
to the court was one of fact and not of law.
Union Judiciary Act -

90
See Kean Eng and Co. and three other v The Custodian of Moveable Properties Burma and one, 1949 B.L.R (H.C)
P.71 In India, however, the High Courts have power to issue writs.
91
See the cases of D.D.Grover v. A.C.Koonda &One.1955B.L.R.S.C P.54and U San Win v Secretary, Ministry of
Judicial Affairs,1957 B.L.RS.C P.84
92
See V.E.R.M.N.R. Kasi V. The official Assignee and One1958 B.L.R(S.C) P.74
93
This aspect has been partly discussed under the powers of the President.
 98

Court of Record -

supervisory -

sit -

quorum -

puisne judge -

exceeded -

contingency -

requested -

retired -

Supreme Court Bench -

appellate jurisdiction -

grant -

issue -

writ -

habeas corpus -

mandamus -

certiorari -

prohibition -

quo-warranto -

happily worded -

interpreted -
 99

safeguarding -

argued -

invoke -

super intendance -

liberal interpretation -

context -

quasi-judicial -

question of law -

deliver judgment -

dissenting opinions -

submit -

restriction -

offended -

extent -

British Commercial interests -

contention -

3.9.6 The High Court

The High Court is next to the Supreme Court in the judicial hierarchy. It has both
original as well as appellate jurisdiction. Under s.81 of the Government of Burma Act
1935 the High Court was a Court of Record and continues to be a Court of Record under
section 148 of the Constitution.
 100

The ordinary original jurisdiction of the High Court both civil and criminal is
limited to the city of Yangon.94Under s.135(1) of the constitution the High Court is also
to have exclusive original jurisdiction to cover all matters arising under any treaty made
by the Union and over all disputes between the Union and a unit, or between on unit and
another.95
The High Court is also given extraordinary civil jurisdiction as well as
extraordinary criminal jurisdiction. Thus it has jurisdiction to hear or try civil or criminal
case falling within the jurisdiction of any court subordinate to it96. The High Court is also
given Maritime and Admiralty jurisdiction.97
As for the appellate jurisdiction of the High Court it has jurisdiction to hear
appeals from judgments or orders of a single judge of the court.98 It is also a court of
appeal from all the lower civil courts.99
Furthermore it is a court of criminal appeal from all the criminal courts
subordinate to it and from all other courts for which it is declared to be a court of appeal
by any law for the time being in force.100
So far the main seat of the High Court is at Yangon though it many other places.
In recent years, one judge has been deputed to sit at Mandalay near criminal appeals and
revisions from Upper Myanmar. Whenever there is a necessity to constitute a Bench
another judge goes up to Mandalay for the occasion. Although the constitution
specifically mentions (s. 148) the Shan State as a place where a judge or judges of the
High Court may be asked to sit so far no judge has yet been deputed to the Shan States
through there is a strong likelihood that this will be done in the near future.
hierarchy -

94
See s.14.15 &17 of the Union Judiciary Act
95
This seems to be a somewhat unique feature in the Myanmar Constitution. For example by s.131 of the Indian
Constitution, exclusive original jurisdiction in such matters is given to the Supreme Court.
96
Sees.16 and 18 Union Judiciary Act.
97
See s19,Ibid
98
See s.20. Ibid
99
See s.21 Ibid
100
See s.23 and 18 Ibid.
 101

appellate jurisdiction -

Court of Record -

exclusive -

original jurisdiction -

arising -

unit -

extraordinary -

falling -

subordinate -

Maritime and Admiralty Jurisdiction -

judgment -

main seat -

revisions -

necessity to constitute -

specifically -

asked to sit -

deputed -

likelihood -
 102

3.10 Other Important Provisions in the Constitution

3.10.1 Citizenship

The provisions relating to citizenship in the constitution are included in the chapter
on Fundamental Rights, probably because most of the “fundamental rights” specifically
mentioned in the Constitution refer expressly to citizens.101
Under s.10 of the constitution there is to be only one citizenship throughout the
Union. In other word there is to be no state citizenship separate from Union citizenship.
Section 11 lays down the tests for citizenship. It is to be noted that both the blood
test and place of birth test are applied.102 Under the constitution 103 there are three classes
of natural-born citizens:
(1) Persons both of whose presents belong or belonged to any of the indigenous
races of Myanmar.104
(2) Persons born in Myanmar at least one of whose grand-parents belong or
belonged to any of the indigenous races of Myanmar.
(3) Persons born in Myanmar, both of whose parents are, or if they has lived at the
commencement of the Constitution would have been citizens of the Union.
Under s.11 (iv) of the constitution certain persons were allowed to elect Union
Citizenship, if they fulfilled the following conditions-
(a) they must have been born in territory which at the date of their birth was British.
(b) they must have resided in Union territory for a period of at least eight years in the
ten years immediately preceding the date of the commencement of the
Constitution or immediately preceding January 1, 1942105

101
This however does not mean that non-citizens do not enjoy-rights to fundamental rights.
102
Sir B.N.Rau. India‟s late Constitutional adviser who had a hand in the drafting of the Burmese Constitution is of
the view that Burmese blood has been made the main test See. India's Constitutions in the Making.
103
Section ii(i) & (iii) of the Constitution
104
Under s. 3(3) of the Union Citizenship Act 1948 the phrase “any of the indigenous races of Burma means the
Arakanese, Burmese, Chins, Karen, Kayah, Mon or Shan race and such radial group as has settled in any of the
territories included within the Union as their permanent home from a period anterior to 1823.
 103

(c) they must intend to make Myanmar their permanent home.

(d) they must signify their election of Myanmar Citizenship in the manner and within
the time prescribed by law.106
Under s. 12 of the constitution, parliament was given power to make laws in
respect of citizenship and it was expressly stated that any such law may provide for the
admission of new classes of citizenship or for the termination of the citizenship of
existing classes.
Thus a new class of natural-born citizens was created under the Union Citizenship
Act, 1948. Under s.4 (2) of the Act any person descended from ancestors Who for two
generations at least have all made any of the territories included within the Union their
permanent home and whose parents and himself were born in any of such territories shall
be demand to be a citizen of the Union .107
It should also be noted the power given to parliament under s. 12 of the
constitution to pass law “for the termination of the citizenship of any existing classes” has
caused anxiety in certain circles.108
citizenship -

included -

Fundamental Rights -

blood test -

place of birth test -

applied -

105
This latter benefit was apparently inserted for the benefit of those (mainly Indians) who had to leave Myanmar
during the Japanese occupation.
106
Under the Union Citizenship (Election) Act 1948 time for such elections was prescribed as one year from the
coming into operation of the Act. and this was finally extended up to April, 1954. Thus s. II (iv) of the
Constitution was merely of a transitory nature and is no longer of practical importance.
107
For further details as in who can become citizens see the Union Citizenship Act. 1948
108
For example the Arakenese Muslim Association Akyab in putting fourth their views to the Constitution
Revision Committee, has stated that this power could be misused by any political party commanding a majority
in Parliament to harass their opponents and suggested the deletion of these words in s.12.
 104

natural-born citizens -

indigenous -

grand-parents -

elect -

Union Citizenship -

Union Citizenship Act -

resided -

Union territory -

preceding -

intend -

prescribed -

admission -

termination -

existing classes -

created -

descended -

ancestors -

generations -

demand -

anxiety -
 105

3.10.2 Fundamental Rights

In including a chapter on fundamental rights in the constitution of Myanmar the

framers of the constitution were merely following the example of countries like America,
Switzerland, Germany, Ireland and the U.S.S.R. Nevertheless it is to be considered as a
contribution to the constitutional history of Myanmar. For under the Government of
Burma of Act under British Rule there was no such thing.
These fundamental rights which have been enacted into the constitution not only
act as limitations upon the executive but also on the legislative authorities. The
constitution enumerates seven types of fundamental rights.109
Rights of Equality (s. 13 to 15)
Rights of Freedom (s. 16 to 19)
Rights relating to religion (s. 20 to 21)
Cultural and Educational Rights (s. 22)
Economic Rights (s. 23)
Rights in relation to criminal law (s. 24)
Rights to constitutional remedies (s. 25 to 29)
It appears that the fundamental rights in the Myanmar constitution follow closely
both in form and content those recommended by the advisory committee of the Indian
Constituent Assembly though occasionally the phrasing is more cautions. 110 It is also to
be noted that the provisions in the Indian Constitution regarding fundamental rights are in
much more detail. for Example the Indian Constitution contains a separate Article (Art
22) giving protection against unlawful arrest or detention. Thus in India a person who is
arrested cannot be detained in custody without being informed of the grounds for such
arrest. He is also given the right to consult and to be defended by a legal practitioner of
his choice. No corresponding provision exists in the Myanmar Constitution.

109
For a fairly detailed exposition on the Fundamental Right in Myanmar see and article by Dr Alan Gledhill in the
Burma Law Institute Journal Vol. 11 No. 11 p.3
110
See India‟s Constitution in the making P. 443 Act seq
 106

Very recently sections 20 and 21 of the Constitution which deals with “Rights
relating to Religion” were amended by two Constitution Amendment Acts namely the
Constitution (Third Amendment) Act 1961 and the Constitution (fourth Amendment) Act
1961. Both these Acts caused considerable controversy.
By the Constitution (Third Amendment) Act 1961 which was passed in August
1961. s.21 (1) of the constitution was amended to make Buddhism the “State Religion”.
Formerly that sub-section merely stated that the State recognizes the “special position” of
Buddhism as the faith professed by the great majority of the citizens of the Union.
Furthermore a new sub-section namely sub-section(5) was added to s.21 to make it
obligatory on the Union Government to render financial aid amounting to not less than
5% of the annual current expenditure for matters connected with religions. The
interesting point is that the word “religions” not only covers Buddhism but also Islam
Christianity Hinduism and Animism which are the other important religions in the Union.
This Amendment Act also added 4 new sections to the sub-chapter on Rights relating to
Religion namely sections 21 A. 21 B, 21C and 21 D by which certain obligation were
imposed on the Government in connection with the Buddhist Religion.
By the constitution (Fourth Amendment) Act 1961 which was passed in
September 1961 s.20 of the constitution was amended by adding the word “teach.” Thus
besides the right to freely profess and practice religion the right to teach religion was
expressly given so as to avoid any ambiguity on the subject. Furthermore a provision was
added to s.20 to ensure that children are not taught any religion at school except the
religion of their parents.
framer -

contribution -

enacted -

limitations -

executive -
 107

legislative -

enumerates -

Right of Equality -

constitutional remedies -

appears -

closely -

recommended -

Constituent Assembly -

occasionally -

cautions -

separate Article -

unlawful arrest -

detention -

detained in custody -

informed -

consult -

defended -

legal practitioner -

corresponding -

recently -

amended -
 108

controversy -

State Religion -

special position -

faith -

professed -

obligatory -

render -

financial aid -

annual current expenditure -

Christianity -

Hinduism -

Animism -

obligation -

imposed -

teach -

freely profess -

ambiguity -

3.10.3 Directive Principles

Chapter IV of the Constitution (s.32 to 44) lays down certain directive principles
of State policy. It is expressly stated in s.32 that the principles set forth in the Chapter are
only for the general guidance of the State and are not enforceable in any court of law.
 109

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

care of the State. This general statement in s.32 of the Constitution regarding the utility of
the directive principles is similar to that contained in Art 37 of the Indian Constitution.
In some respects these directive principles correspond to the instrument of
instructions which was addressed to the Governor by the British Monarch. The difference
now being that they are addressed to all State authorities.
Although the Directive Principle are more in the nature of a moral homily the
accepted view is that courts cannot altogether ignore the existence of the directives in the
body of the constitution.111
It is also interesting to note that though the Directive Principle embodied in the
Myanmar Constitution are on the lines indicated in one of the pamphlets prepared by the
Indian Constitution Assembly here are certain significant additions. For example s. 40
states that the State shall ensure disabled ex-servicemen a decent living and free
occupational training. The children of fallen soldiers and children orphaned by war shall
be under the special care of the State. This directive apparently does not find a place in
the Indian Constitution because India was not a battlefield and the problem does not exist
to this extent.
state policy -

set forth -

guidance -

enforceable -

court of law -

application -

administration -

111
for this view See India‟s Constitution in the Making P.483
See Basu's Commentary on the Constitution of India. Vol. 1 P. 393
 110

care -

utility -

directive -

correspond -

instructions -

addressed -

state authorities -

moral -

ignore -

embodied -

indicated -

pamphlets -

disabled -

ex-servicemen -

decent -

free occupational training -

orphaned -

battlefield -

Then there are also certain directives which have been inserted because of the
intention of the framers of the constitution that the economic policy of the State should be
of a socialistic pattern.112 Thus s.41 states that the economic life of the Union shall be

112
See the speech of Thakhin Nu in moving the adoption of Constitutions, Constituent Assembly Proceedings, Vol
3 No.8,24th September1947.
 111

planned with the aim of increasing the public wealth of improving the material conditions
of the people and raising their cultural level of consolidating the independence of the
Union and strengthening its defensive capacity. This directive principle has been
consistently followed since Independence. Thus soon after independence there was the
Two Year Place this was followed by the Pyidawtha Plan in 1952 and this was in turn
followed by the Four Year Plan in July 1957. Lately in the beginning of 1961 a fresh plan
called the Second Four Year Plan was lunched. While the success of these plans is matter
of controversy there is no doubt that the Government is power since independence has
not forgotten the directions contained in s.41.
Mention may also be made of s. 42 which states that the State shall direct its
policy towards giving material assistance to economic organizations not working for
private profit and preference is to be given to cooperative and similar economic
organizations. Lastly, there is s.44, sub-section (2) of which states that the State shall
direct its policy towards exploitation of all natural sources in the Union by itself or local
bodies or by people‟s co-operatives organizations.113
It may also be mentioned here that very recently, by the Constitution (Third
Amendment) Act, 1961, in addition to the changes made in the Chapter on Fundamental
Rights because of the introduction of Buddhism as the State Religion, two new sections
in the form of s.43 A and s.43 B were added to the Chapter on Directive Principles. Thus,
under s.43A the State is to give assistance and aid to the restoration of ancient pagodas
and temples. Under s.43B the State is to have separate hospitals for the Buddhist monks.
socialistic pattern -

planned -

aim of increasing -

public wealth -

material conditions -

113
This directive is in face repeated in substantive form in s.219 of the Constitution.
 112

raising -

consolidating -

strengthening -

defensive capacity -

consistently -

Pyidawtha Plan -

fresh plan -

forgotten -

material assistance -

private profit -

prefence -

exploitation -

People‟s co-operatives organizations -

restoration -

ancient temples -

separate hospitals -

monks -

3.10.4 Constitutional Amendment

Under s.207 of the Constitution, any provisions in the Constitution may be

amended whether by way of variation, addition or repeal. The manner of amendment is
laid down in section 208 and 209.
 113

Like any other Bill, a Constitution Amendment Bill may be initiated in either
chamber of Parliament however a constitution and no other proposals. The Bill must then
be passed by each Chamber of Parliament, apparently by majority vote as in the case of
other bills. But unlike other Bills it must again be considered by both chambers in joint-
sitting. The chambers in joint-sitting must then pass the Bill with not less than two-thirds
of the then114members of both Chambers voting in favor of it.
In addition to the above requirement where a Constitution Amendment Bill seeks
to amend the State Legislative List or the State Revenue List a majority of members
present and voting representing the State or each of ………. concerned must vote in favor
of it at the joint-sitting. A similar requirement is specially imposed in respect of Bill
affecting the rights of Chins conferred on them by the Constitution.
When a Constitution Amendment Bill has been passed in the manner mentioned
above them in President shall forthwith115 sign and promulgate the same (s.210).
From what has been stated above it can be seen that the procedure of amending the
constitution is not a very difficult or complicate one. Thus for a federal constitution the
Myanmar Constitution is not very rigid. In spite of this relative flexibility, it will be
observed that it also contains certain safeguards for the minority races.
One point which also emerges is that as any of the provisions of the constitution
may be amended no special sanctity has been given to “fundamental rights”. Any of the
provisions relating to fundamental rights may therefore be amended at any time.
Within the thirteen years of the operation of the Constitution, five amendments
have so far been made. It is interesting to not that so far all of them were passed without
difficulty.
variation -

addition -

repeal -

114
Note the requisite quorum is not 2/3rds of the members present and voting at the joint-sitting 2/3rds of the them
existing members.
115
As we have seen Post other bills are to be signed within 7 days See s.111(2)
 114

laid down -

initiated -

Chamber of Parliament -

proposals -

majority vote -

joint-sitting -

two-thirds -

Constitution Amendment Bill -

State Revenue List -

imposed -

affecting -

forthwith -

complicate -

rigid -

flexibility -

minority races -

emerges -

sanctity -

operation -

without difficulty -
 115

3.10.4.1 Practical Amendment

The First Amendment was made by the Constitution Amendment Act by which
the original sections 180 and 181 were deleted and new sections with the same numbers
were introduced. This was done to provide for the establishment of the new Karen State
and for laying down provisions for the running of the Government of the State.116
The Second Amendment was made by the Constitution. This had to be done to
enable General Ne Win‟s Government (mainly composed of non Members of Parliament)
to remain in power for more than a period of six months.117
The Third Amendment was made in the same year by the Constitution (Second)
Amendment Act, 1949, consequent to the surrender of power of the Saophas of the Shan
State, and Sawphyas of the Kayah State. By this Amendment the special provisions
contained in s 54(2) and s. 183 of the Constitution for their representation in the Chamber
of Neutralities was deleted.
The Fourth amendment was made by the Constitution Amendment Act 1961 to
give legal sanction to the slight diminution of the Union territories consequent to the
demarcation by the Sino-Burma border under the treaty between the Government of the
Union of Myanmar and the People‟s Republic of China. Thus minor changes had to be
made in section 2.5 and 7 of the Constitution.
First Amendment -

deleted -

introduced -

establishment -

laying down -

116
for the reasons behind this amendment see p.post of this Article
117
This Amendment Act caused to remain in force from the date Thakhin Nu was appointed Prime Minister after
the General Elections of February, 1960. This s.116 has now been automically restored to the Constitution.
 116

running -

surrender -

Saophas -

Sawphyas -

representation -

sanction -

slight diminution -

Union territories -

demarcation -

Sino-Burma - -

People‟s Republic of China -

The Fifth Amendment was also made this year (1961) by the Constitution (second)
Amendment Act 1961, for the establishment of an Election Commission, for the
superintendence, direction and control of the preparation of electoral rolls for all
elections, and of the conduct of elections to the Parliament and the conduct of elections
under any other law. By this Amendment, a new Part namely Part VI, has been added to
Chapter VI of the Constitution. This view Part contains ten new sections numbered as
s.113 A to 113J.
No doubt, some of the provisions of this Amendment Act have been inspired by
the corresponding provisions of the Indian Constitution. It is to be hoped that the
enactment of these provisions into the Constitution and the consequential enactment of
the Elections Commission Act 1961 will reduce the alleged malpractices of all kinds
during elections.
 117

The Sixth Amendment was made in August 1961 by the Constitution (Third
Amendment) Act, 1961, by which Buddhism was established as the State Religion of
Myanmar.
This was followed about a month later in September 1961 by the Constitution
(Fourth Amendment) Act, 1961 which was meant to provide additional safeguards to the
right of freedom of worship. This is so far the last Amendment.
It is anticipated that in the early part of 1962 fresh Amendments will be made to
the Constitution for the creation of the Yakhine State and the Mon State within the Union
of Myanmar.
minor changes -

Election Commission Act -

superintendence -

preparation -

electoral -

numbered -

inspired -

consequential enactment -

reduce -

alleged -

malpractices -

established -

State Religion -

meant -

safeguard -
 118

freedom of worship -

anticipated -
 Chapter 4

The Revolutionary Council (1962 - 1974)

After gaining independence, the avowed aim and object of the founders
of the Union of Burma (Myanmar) was in fact, the founding of a socialist State
and socialist economy where there was no exploitation of man by man.
Besides, they wished to assure all those fundamental rights and other eternal
human rights of liberty, fraternity, equality and justice for all the citizens of the
nation. They had ardent desire to preserve and perpetuate the sovereignty of the
State and stability of the country. They also wished to see all the brethren of the
country, all the citizens and indigenous races of the land live in peace and
harmony, enjoying equal rights. There should be no such, British colonial
policy of "Divide and Rule", practiced during the colonial rule.
gaining
independence,
avowed
the founders
socialist State
socialist economy
exploitation
man by man
assure
fundamental rights
human rights of liberty
fraternity,
equality
 104

justice
citizens
ardent
perpetuate
the sovereignty of the State
stability of the country
brethren of the country
all the citizens
indigenous
races of the land
peace and harmony
enjoying equal right
colonial rule
On March 2, 1962, the Revolutionary Council headed by General Ne
Win was set up by Notification No1. Then Union Executive has been replaced
by the Revolutionary Council Government through Notification No 2.
The Dissolution of the Union Parliament through Notification No 4 does
away with the Legislature. Abolishment of State Councils through various
notifications does away with the federal pattern in the late Constitution. The
State Councils have been replaced by State Supreme Councils headed by
Chairmen. The State Councils are no longer elected bodies. The members are
appointed by the Chairman of the Revolutionary Council. There are no longer
Heads of State who under the defunct Constitution were members of the
Cabinet.

the Revolutionary Council

Union Executive

dissolution
 105

Union Parliament

abolishment

State Councils

various notifications

federal pattern

the late Constitution

replaced

elected bodies

the Chairman of the Revolutionary Council

defunct
Under the present set-up a totally new economic and political system
which is quite different from that under the late Union Constitution emerges.
The Revolutionary Council was the source of all power. Executive,
Legislative and Judiciary powers were vested in the Revolutionary Council
which delegated is executive arm to the Revolutionary Government.
Revolutionary Government therefore is the executive arm of the Revolutionary
Council and has the status of the former cabinet. Revolutionary Council is not
only a superior body but it also has constitutional powers. The Chairman of the
Revolutionary Council has been delegated with all the legislative executive and
judiciary powers of the Revolutionary Council by Notification No 20.
set-up

economic and political system

quite different

emerges

Executive

Legislative
 106

Judiciary powers

Revolutionary Government

the status of the former cabinet

superior body
constitutional powers

delegated

4. 1 Establishment of Revolutionary Council

However, there arose an impending danger of disintegration of the
country due to federal question raised by the Shan State, the Myanmar
Tatmataw had to step in and set up the Revolutionary Council Government on
2nd March, 1962. Until a new Socialist Constitution was drafted and ratified in
1974, series of laws were enacted to establish a Socialist State, Socialist
Economy and a Judicial System in compliance with the objective. These laws
were in fact, "Enabling Laws", that should realize their aims.
Apart from building a socialist State and socialist economy, the
Revolutionary Council had the following objectives:1
(1) To safeguard and protect the people and the country;
(2) To provide and assure fundamental rights of the citizens;
(3) To enable the working people live in peace, harmony and
fraternity;
(4) To render necessary education for the understanding and
interpretation of the rule of law and the moral code of conduct;
(5) To establish a judicial system that might administer substantial
justice based on equality and social norms.
arose
an impending danger

1
Lecture note published by the Supreme Court.
 107

disintegration
federal question
drafted
ratified
series of laws
Socialist State
enabling Laws
safeguard
protect
assure
fundamental rights
working people
render
interpretation of the rule of law
the moral code of conduct
substantial justice
equality
social norms

4. 2 Laws Promulgated by the Revolutionary Council (1962-1972)

During this decade, extending from 1962 to 1972, the Revolutionary
Council passed a large number of laws amounting to (149). 1 These Laws
covered very extensive and vast aspects of the administration of the country in
all the facets and departments such as:
(1) Laws concerning economy of the country;
(2) Laws for Administration;

1
Aung Than Tun, U, Revolutionary Council Laws, Introduction, (1974/75), Vol, I and II, Yangon.
 108

(3) Laws for the Judicial Machinery;

(4) Laws for the Public Health and Longevity;
(5) Laws for Myanmar Art and Culture;
(6) Laws for the uplift of Farmers and Peasants;
(7) Laws for the Workers;
(8) Laws for the Armed Forces;
(9) Laws for the Finance and Budget;
(10) Amendments made to the existing laws etc.
decade
extending
a large number of laws
extensive
vast aspects
administration of the country
Judicial Machinery
Public Health and Longevity
Myanmar Art and Culture
uplift
farmers and peasants
Armed Forces
Finance and Budget
amendments

4. 3 Effects of Enactments
As a result of the legal enactments, the after-effects that followed were:
(1) The establishment of the socialist democratic State;
(2) The socialist economy;
 109

(3) Annulment of bureaucratic machinery and substituting people's

administration;
(4) The founding of the People's Judicial System;
(5) The upliftment of the living standards of farmers and workers;
(6) Preservation and development of Myanmar art and culture,
language and literature, traditional performance of arts and
music;
(7) Promotion of traditional medicine and public health;
(8) Promotion and development of primary to higher education
standards;
(9) To nurture unity and integrity of the nationalities and indigenous
races;
(10) To materialize and substantiate all-round development of the
country in the light of socialist ideology and economy.
The essential laws and amendments were made to uphold the political
system of the Revolutionary Council period, and to meet the new
administration system and Special Crime Courts, Special Crime Appellate
Court, Local Peoples Court and their procedures.
By virtue of the Notification No 25 the Union Judiciary is done away
with.
The highest judicial body is the Chief Court of the Union of Myanmar
which has replaced the Supreme Court and the High Court. It exercises all the
powers and duties conferred and imposed on the defunct Supreme Court and
High Court under the existing laws. It was the final appellate court. It also had
the power to issue writ of certiorari. Special Crime Tribunals were also formed.
legal enactments
the socialist democratic State
 110

annulment of bureaucratic machinery

substituting
people's administration
writ of certiorari
Special Crime Tribunals
conferred
imposed
defunct
final appellate court

4.4 The Essence of People's Judicial System

The then Chief Justice of the Union, Dr. Maung Maung explained and
exhorted at length about the principles and essence of the People's Judicial
System (Pyithu Tara Siyinye) or socialist style and methodology of judicial
administration, in the following was the architect of Myanmar Independence,
Bogyoke Aung San had guided that there should be established a judicial
system administered by the people for their own general welfare and well-
being."1
Chief Justice of the Union
explained
exhorted
principles
essence
People's Judicial System
welfare and well-being
1
Maung Maung, Dr. People's Court Manual, Forward, (1979),Yangon, Vol I.
 111

The People's Judicial System was meant the people's committees being
formed by people's representatives, administering justice on public affairs and
legal disputes according to prevailing laws and custom or any traditions fairly
and properly. As these committee members were mere conversant with the
public affairs of their own localities, they were in a position to weigh and
consider more properly than the alien judges and judicial officers. They knew
their own people, own place and own fields. If possible, they should settle the
matters amicably by conciliation, negotiation and arbitration. The people of the
locality would better understand and appreciate the decisions passed by their
own representatives of the Judicial Committee.

people's representatives
administering justice
public affairs
legal disputes
prevailing laws
custom
traditions
conversant
committee members
amicably
conciliation
negotiation
arbitration
locality
appreciate
representatives of the Judicial Committee


 112

Those People's Committees were not full-time judges and not on

permanent basis. They are composed of local farmers and peasants, people's
workers and just philanthropic participants, contributing their time and labour
for the public good and justice. They sit as judges on rotation. After having
done their services, they go back to their own jobs. If they decide unfairly and
with bias they could not and dare not face their own people when they go back.
Thus, this fact is a protection against corruption".
People's Committees
full-time judges
local farmers and peasants

people's workers
just philanthropic participants
public good and justice

rotation
services
decide
unfairly
protection
corruption

"The basic unit of the state is village and locality. When the villages are
amalgamated they become township; when townships are merged, they become
state and divisions; when the states and divisions are combined they are formed
 113

into a State. Most of the people live in various localities and villages. The legal
disputes used to arise in such places. For that reason, all the legal matters
arising at such places could easily and fairly be thrashed out there. The legal
process could be made more easily without consuming time and money at the
localities and villages. The litigants need not spend much time and legal costs
by that way, and hence, there will be better speedy and fair legal trials. Thus, it
will not affect individual and state economy, man-power and human
resources".
amalgamated
merged
combined
the litigants
speedy
legal costs
consuming time and money
human resources

4.5 The Objectives of Judiciary and Legal Principles

Since the inauguration of the New Administration in1972 by the
Revolutionary Council, the objectives followed by the judiciary were as
follows:
(1) Justice was to be administered by the Legal Committees or
Judicial Committees;
(2) As the peoples residing in the respective localities was more

inauguration
the judiciary
 114

Justice
Legal Committees
Judicial Committees
the respective localities

4. 5. 1 Chief Court
The Revolutionary Council of the Union of Myanmar has, by its
proclamation No. XXV abolished with effect from the 1st April 1962, the
Supreme Court and High Court, and then established a court of final appeal
known as the Chief Court. The Chief Court established by the Revolutionary
Council was regarded as the highest court of Myanmar and empowered with
original jurisdiction and appellate jurisdiction.
proclamation
Supreme Court
High Court
court of final appeal
the Chief Court
original jurisdiction
appellate jurisdiction
empowered
supervise
decrease
pressure of work
expedite
disposal
 115

The Chief Court was composed of the Chief Justice and five other
judges, empowered with the powers and functions of the Supreme Courts, and
supervise other courts in the country.1
As there had been no decrease in the volume of work in the Chief Court,
the six judges had to work harder.2 In order to relieve the pressure of work and
also to expedite disposal of cases the Revolutionary Council had enacted two
laws. They were the Rangoon City Civil Court Act Amending Law 1962 and
the Court Act Amending Law 1962. Under these Laws, some of the functions
of the Chief Court such as disposal of some criminal appeal cases and hearing
of some civil suits had been delegated to lower courts. One of its judges sat at
Mandalay in rotation to ensure speedy disposal of cases in Upper Myanmar.
The Chief Court was empowered with the powers and duties of the Supreme
Court and High Court. The Supreme Court was regarded as the final court of
appeal. Relating to writ jurisdiction the Supreme Court was empowered with
certiorari writ only. All the pending cases in the Supreme Court and High Court
were presumed to be transferred to the newly formed Supreme Court.3 For the
jurisdiction of the criminal courts and civil courts, these courts exercise the
jurisdiction empowered in accordance with the Union Judiciary Act (1948), the
Court Act (1950), Civil Procedure Code (1908), and Criminal Procedure Code
(1898).
decrease
criminal appeal cases
civil suits
delegated to lower courts
rotation

1
Burma Gazetteer(1962),No.XV, p.437- 438.
2
Myanmar Administrative and Social Affairs,1962-63by the Director of Information,Myanmar, p.36.
3
Burma Gazetteer,(7. 4. 62), p.437- 438.
 116

disposal of cases
certiorari
jurisdiction of the criminal courts
civil courts
Union Judiciary Act (1948) ,

4. 5. 2 Other Courts
The lower courts were divided into two divisions, civil courts and
criminal courts.
Civil justice was administrated by a hierarchy of courts set up in the
districts ranging from township and sub-divisional courts to district and
additional district courts. In Yangon, civil suits up to the value of K 50, 000 are
entertained by the Rangoon City Civil Court.1
For administering criminal justice a similar hierarchy of courts had been
set up, Sessions Courts, Additional Sessions Courts, Sub-divisional Courts and
Magistrates' Courts. In addition, there were two Juvenile Courts at Yangon and
Mandalay to deal exclusively with criminal cases involving Juvenile accused.
The jurisdiction and its powers of District and Session Courts,
Additional District and Session Courts, Sub-divisional Courts, Township
Courts and Magisterial Courts were as prescribed in the Civil Procedure Code
and Criminal Procedure Code and powers invested by the Chief Court. The
Revolutionary Council did not change the pattern of the existing civil and
criminal courts.
Civil justice
lower courts
civil courts

1
Section 13 of the RangoonCity Civil Court Act 1920.
 117

criminal courts
Sessions Courts
Sub-divisional Courts
Magistrates' Courts
Juvenile Courts
Juvenile accused
District Court
The Revolutionary Council also promulgated the 1962 Union of
Myanmar Frontier Areas Administration Law.1 In that Act for the purpose of
Frontier Administration, judiciary was also mentioned in the said law. In that
Act criminal courts were formed same as the court mentioned in the Union
Judiciary Act 1948 and the Court Act 1950.2 Civil courts were also formed as
mentioned in the above Acts. The jurisdiction of the court formed by the 1962
Union of Myanmar Frontier Areas Administration Law, has the right to
exercise jurisdiction in accordance with the above mentioned laws.3
The Special Criminal Tribunal may also be formed with 3 members, if
the Revolutionary Government decided that a case shall be tried by a Special
Criminal Tribunal. If the opinion of the members of the tribunal were different
the majority vote shall be the judgment of the tribunal.4
Promulgated
Union of Myanmar Frontier Areas Administration Law

mentioned
criminal courts

1
Union of Myanmar Frontier Areas Administration Law,1962,Act No.XLIV.
2
Section 10-12, Ibid.
3
Section 13-15, Ibid.
4
Section 11, Ibid.
 118

judiciary
civil courts
jurisdiction of the court
The Special Criminal Tribunal
the Revolutionary Government
tried
the opinion
the majority vote
the judgment of the tribunal

4.5.3 Special Crime Court

In order to suppress the offences against the socialist economy and
socialist society, the administrative authority has the right formed special crime
courts, and the promulgation of Special Crime Court Law. Crime offences trial
by special crime courts have the power to sentence 3 years imprisonment,
whichever the provisions of sentences contained in the offences charged by the
prosecution.
The Special Crime Court Law, 15/1962 was promulgated by the
Revolutionary Council, intended to try aggravated offences committed by
offenders.
What offences were to be tried by the Special Crime Court, if the
Central Security and Administration Committee considers a case fit for trial by
a Special Crime Court, it must notify the Ministry of Judicial Affairs of the
intention to form such a court. The Ministry will act expeditiously for
formation of the court and for the relevant case files which may be in the
original trial court to be forwarded to Special Crime Court.
 119

suppress
offences
socialist economy
socialist society
promulgation
Special Crime Court Law
administrative authority
imprisonment,
provisions of sentences
offences
charged by the prosecution
aggravated offences
notify
the Ministry of Judicial Affairs
expeditiously
The District Security and Administration Committee shall have the
assistance of the District Sessions Judge or the District Magistrate as the case
may be in connection with the trial by Special Crime Court.
The Special Crime Court consisted of three judges formed by the Judiciary
Ministry on ad-hoc purpose. One of the judges is a legal expert. The aim to
form a Special Crime Court is to pass deterrent punishment towards the
accused if it is found guilty. The Special Crime Court may try any offences if
the authorized organ of state thinks fit. The Special Crime Court has the power
to sentence the accused not less than 3 years imprisonment, whatever the
provision of sentence contained in the particular offence. Basically the aim to
promulgate the Special Crime Court Law and the formation of Special Crime
 120

Courts are to give deterrent punishment towards the accused that committed
offences against the socialist economy and public property.
If an accused is dissatisfied with the judgment of the Special Crime
Court, then the convicted person may file an appeal to the Special Crime
Appeal Tribunal consisting of 3 judges. The Chairman of the Special Crime
Appellate Tribunal shall be an Army Personnel. A judge or a person having
legal knowledge also participated as a member in the Tribunal. The decision of
the Special Crime Appellate Tribunal is almost final and conclusive.
The District Security and Administration Committee

assistance of the District Sessions Judge

the District Magistrate

the trial by Special Crime Court

a legal expert
ad-hoc
deterrent punishment
the Special Crime Appellate Tribunal
Army Personnel
legal knowledge
participated
the Tribunal
final and conclusive
Members of the Special Crime Court must be sworn into office. The
chairman of the court will have the responsibility of ensuring speedy justice to
the accused.
 121

The complainant and the prosecution witness will be examined and then,
the accused. If the prosecution statements are weakened by the accused's
throwing doubt upon their veracity, no charges shall be framed against the
accused and a fresh examination shall be made of the exhibits in hand and of
the whole case.
If the accused pleads not guilty, the court will decide if re- examination
of the prosecution witness is necessary and if so, to have such witness reappear
in the court within one hour.
sworn
responsibility
complainant
the prosecution
weakened
veracity
fresh examination
the exhibits
guilty
re- examination
witness
reappear
The accused must be re-examined if there are incriminating statements
in the prosecution evidence. Prosecution witness can be cross-examined by the
accused or his counsel. After a charge is formed, the accused must be asked if
he will make statements an oath and if he wishes to cite witnesses. In case of
defense witnesses cited, the court may decide not to summon any of such
 122

witness whose appearance is considered to be calculated to delay the

proceedings and are unimportant to the purpose of the trial.1
The Confirming Authority must maintain a permanent list of seven
reserve members competent and available for carrying out its functions. The
Confirming Authority is the final authority over the Special Crime Court and is
empowered to uphold, reverse, modify, substitute or order a retrial in
connection with the decisions of the Special Crime Court. It also empowered to
commute the penalty.
incriminating statements
the prosecution
evidence
oath
defense witnesses
appearance
proceedings
calculated
The Confirming Authority
uphold,
reverse,

modify
substitute
order
commute

the penalty

1
The Guardian Newspaper (1.12.62).
 123

If a retrial is ordered, it will be conducted by the original Special Crime

Court which originally dealt with the case.
The Special Crime Court will have a Chairman and three members, one
of whom shall possess legal knowledge. In addition, a special legal adviser will
be assigned to them.
If a Special Crime Court awards any sentence of an indefinite period of
life imprisonment or of transportation for life, that sentence shall be effective
from the date of the signature of the order by the Chairman of the court.
In case of penalties exceeding seven years imprisonment or a death
sentence, the accused concerned are entitled to apply for a copy of the original
judgment which must be issued to them free of charge. Special Crime Court
Law was repealed by Special Crime Court Repeal Law of 8/1973.
The Special Crime Court Law was promulgated by the Revolutionary
Council.1 The jurisdiction of the Special Crime Court was mentioned in the
Schedule referred by Section 4 of the Law. But the Special Crime Court Law
was amended by the Law No. XI of 1964, due to the amendment; the offences
mentioned in the schedule were deleted and empowered to the Special Crime
Court to try any offences if the authority concerned thinks fit. 2 Notwithstanding
any punishment prescribed in any law, the Special Crime Court has the power
to punish not less than 3 years imprisonment, maximum punishment is death
sentence, if prescribe by the law.3
conducted
the original Special Crime Court
indefinite
period of life imprisonment

1
Special Crime Court Law 1962, Law No.15.
2
The Special Crime Court Amending Law 1964, Law No. XI.
3
Section 4 of the Special Crime Court Law (1962), amended by Law No. XI of 1964.
 124

transportation for life

empowered
The Special Crime Court Law
the amendment
the schedule
maximum punishment
prescribe by the law

4.5.4 Local People's Courts

The establishment of Protection of Socialist Economy and Property Law
1965 was also promulgated by the Revolutionary Council. The basic aim to
promulgate this law is to try offences under section 14(1), that is, in violation to
socialist economy and property. In trying the cases under the said law, Local
People's Courts are formed on ad-hoc basis.1 The members of the court are
selected by the Peasant's Council and Worker's Council from Township
Community. A law officer also participates as a member of the court.

Protection of Socialist Economy and Property Law 1965

establishment
promulgated
the Revolutionary Council
promulgate
offences
violation
socialist economy

1
Section 14 (2) of the Protection of Socialist Economy and Property Law, 1965.
 125

property
Local People's Courts
the Peasant's Council and Worker's Council

Township Community
Participates
If the convict is dissatisfied with the decision of Local People's Court
formed under the powers delegated to the establishment of Socialist Economy
Law, 1965, may file on appeal to the Appellate Court formed under the said
law. The decision of the appellate court is almost final and conclusive. 1 In
violation of the section 15(1) of the Protection of Socialist Economy Law, such
offence is tried by Special Crime Court.2 The said law was repealed by the
State Law and Order Restoration Council.3
convict
dissatisfied
decision
Local People's Court
the Appellate Court
violation
Legal principles such as the accused is presumed to be innocent until his
guilt is proved, the burden of proof lies on the prosecution, the sentence should
be passed without reasonable doubt, that admitted evidence in the proceeding.
In civil litigation, the court has to hear both parties before giving verdict of the
suit.4

1
Section 14 (3),The Protection of Socialist Economy and Property Law, 1965.
2
Section 15 (4), Ibid.
3
Section 12 State-Owned Economic Enterprises Law 1989.
4
Carr, Justice William, Lectures,(1927), Provincial Training College, Meikhtila.
 126

Relating to trial procedure, except special court, the ordinary law courts have to
abide by the provisions of the Criminal Procedure and Civil Procedure. The
Special Crime Court has its own trial procedure.
According to Revolutionary Council Notification No.113, dated 26-2-
74, the Revolutionary Council invested judicial powers and duties and
succession of duties to the following court in according with Article 196 of the
Constitution of the Socialist Republic of Union of Burma (Myanmar) 1974.
(a) Cases in the Chief Court were presumed to be transfer to the Council
of People's Justices.
(b) The Council of People's Justices shall supervise and give
instructions to the Judiciary Committees of different levels and Judicial Service
personnel.
This episode of Revolutionary Council Government was a predecessor
to the full-fledged Revolutionary Government that came into existence before
the introduction of the New Myanmar Constitution of 1974. It covered the
period of (1962-74) for more than a decade during which time preliminary
preparations for the building of a Socialist State and Socialist Democracy and
Economy were affected.
Legal principles
the accused
presumed
innocent
the burden of proof
the prosecution
reasonable doubt
civil litigation
verdict of the suit
 127

Criminal Procedure
Civil Procedure
The Special Crime Court
The Council of People's Justices
supervise
give
instructions to the Judiciary Committees

Judicial Service Personnel

preliminary preparations
 1

CHAPTER 5
CONSTITUTION OF THE SOCIALIST REPUBLIC OF
THE UNION OF MYANMAR 1974

5.1 Drafting of the Constitution

In July 1971, a decision was made by the first Party Congress of the
Myanmar Socialist Program Party to draw a new constitution. Drafting
Commission of 97 members was formed in September 1971. Drafting
Commission formed the 15 groups and invited and scrutinized the proposals
and suggestions from the people, Drafts are drawn up three times. Draft
constitution was first adopted by Central Committee of the Myanmar Socialist
Programme Party. In October, 1973 new draft of the Constitution of the
Socialist Republic of the Union of Myanmar was adopted by the Party
Convention.
Referendum was held in December 1973, and Majority of the voters
supported and accepted the new Constitution. New Constitution was operative
from the day of 3rd January 1974.
decision -
first Party Congress -
Myanmar Socialist Program -
draw -
Drafting -
formed -
scrutinized -
proposals -
suggestions -
Central Committee -
 2

adopted -
referendum -
majority of voters -
supported -
accepted -

5.2 Basic Principles of the Constitution

Basic principles of the Constitution of the Socialist Republic of the

Union of Myanmar were stipulated in chapter 2 of the Constitution as follows:-
 goal of the State is a socialist society
 The economic system of the State is a Socialist economic
system.
 Socialist democracy is the basis of the State structure.
 There shall be no exploitation of man by man or of one national
race by another in the State.
 The State safeguards the interests of the working people whose
strength is based on peasants and workers.
 The State shall adopt a single-party system. The Myanmar
Socialist Programme Party is the sole political party and it shall
lead the State.
 The sovereign powers of the State reside in the people
comprising all national races whose strength is based on peasants
and workers.
 The State nationalize the means of production within the land-
Suitable enterprises shall be owned and operated by
cooperatives.
 All citizens shall be equal before the law
 The State consistently practices in independent foreign policy,
aimed at international peace and friendly relations among nations
and upholds the principle of the peaceful co-existence of nations;
 3

Basic principles were stipulated from Article 5 to 27.

stipulated -
goal -
socialist society -
state structure -
exploitation -
all national races -
safeguard -
interest -
strength -
peasants -
single-party system -
Socialist Programme Party -
sole political party -
lead -
reside -
comprising -
nationalize -
production -
operated -
cooperatives -
equal -
before the law -
consistently -
uphold -
friendly relations -
peaceful co-existence -
 4

5.3 State Structure

State structure of the Constitution of the Socialist Republic of the Union

of Myanmar was defined in Chapter III of the Constitution.
According to relevant provisions- Local autonomy under central
leadership is the system of the State. (Article 28)
Local areas of the State were organized as follows:-
(1) villages are organized as village-tracts:
(2) words are organized as town;
(3) village tracts and towns are organized as township:
(4) townships are organized as states or divisions: and
Article 30 provided that as follows:-
(a.) Kawthoolei is constituted as Karen State:
(b.) Chin Special Division is constituted as Chin State:
(c.) Tanninthari Division (1) is constituted as Mon State:
(d.) Tanninthari Division(2) is constituted as Tanninthari Division;
(e.) Rakhine Division is constituted as Rakhine State:
So there were 7 divisions and 7 states were equally constituted under
1974 constitution.
The Socialist Republic of the Union of Myanmar had a unicameral
Pyithu Hluttaw according to Article 32 and the following Central Organs of
State Power were formed-
(a.) The Council of Ministers:
(b.) The Council of people’s Justices:
(c.) The Council of people’s Attorneys;
(d)The Council of people’s Inspectors.
A People’s Council was formed for each State, Division, Township
Word and Village-tract.
local autonomy -
central leadership -
 5

village-tracts -
wards -
Kawthoolei -
constituted -
Chin Special Division -
unicameral -

Central Organs of State Power -

People’s Justices -
People’s Attorneys -
People’s Inspectors -
People’s Council -

5.4 Pyithu Hluttaw

The Pyithu Hluttaw was the highest organ of State power. It exercises
the sovereign powers of the State on behalf of the people. The Pyithu Hluttaw
elected by citizens having the right to vote exercise the sovereign power
invested in it by the people and delegates to organs of State Power in
accordance with the 1974 Constitution.
highest organ -
exercises -
sovereign power -
on behalf of -
citizens -
right to vote -
delegate -
 6

5.4.1 Composition

The Pyithu Hluttaw was formed with People’s representatives' elected

directly by secret ballot by citizens who have the right to vote under the
Constitution and other electoral laws. Numbers of People’s representatives
elected to the Pyithu Hluttaw for each term are over 400. Constituencies for the
Pyithu Hluttaw were delimited on township basis.
Each township elects are representative to the Pyithu Hluttaw and
townships with large population, in addition to the right stated above, elect
representatives in proportion to population as prescribed by electoral law
additional than 10 townships and loss than 10 laths in population.
Persons having attained the age of 28 years and having the right to vote
were eligible to stand for election as people’s representatives to the Pyithu
Hluttaw. The regular term of the Pyithu Hluttaw was four years.
People’s representative -
secret ballot -
electoral laws -
Constituencies -
delimited -
basis -
elects -
population -
lakh -
attained -
eligible -
regular term -
 7

5.4.2 Powers

According to Article 41 of the Constitution, the legislative power of the

State vested solely in the Pyithu Hluttaw. The Pyithu Hluttaw might delegate
executive and judicial powers of the State to Central and Local Organs of State
Power in accordance with the constitution.
The Pyithu Hluttaw had exclusive power to enact laws relating to State
economic plans, annual budget and taxation and might decide to declare was
and to make peace and to hold a referendum where necessary. The Pyithu
Hluttaw had powers to constitute various Affairs Committees relating to
economic, financial, Social, public administrative, legislative, foreign, a
national races and other affairs. In addition the Pyithu Hluttaw might form
Commissions and Committees as and when necessary and invest them with
duties and powers.
The Council of State and the Central Organs of State Power were
responsible to the Pyithu Hluttaw and Pyithu Hluttaw might dissolve any
People’s Council or People's Councils for any of the following reasons:-
(a) violation of any provision of the Constitution
(b) action undermining national unity
(c) endangering the stability of the State
(d) contravention of any resolution adopted by the Pyithu Hluttaw
(e) in efficient discharge of duties.
legislative power -
vested -
solely -
delegate -
Central and local Organs of -
State Power
exclusive power -
enact -
 8

annual budget -
taxation -
referendum -
constitute -
Affairs Committees -
financial -
public administrative -
dissolve -
violation -
undermining -
national unity -
endangering -
stability -
contravention -
resolution -
efficient discharge -

5.4.3 Law-Marking (Voting Technique)

As stated above, the legislative power of the State vested solely in the
Phyithu Hluttaw.
The Pyithu Hluttaw decides:
(a) importnd matters only by a vote of 75 percent of all of its
member;
(b) ordinary matters by a vote of more than half of all its members
(c) as to whether any matter is important or ordinary by a vote of
more than half of the members present.
 9

According to Article 46 the Pyithu Htuttaw had the right to enact laws
concerning the culture of a national race only with the consent of more than
half of all the members of the Pyithu Hluttaw from the State or Division
concerned and Article 47 provided that the Pyithu Hluttaw may decide to
declare war and to make peace only by a vote of 75 percent of all its members.
solely -
vested -
decide -
important matters -
culture -
national races -
consent -
decide to declare -
peace -

5.5 Council of State

The Council of State was formed for the purpose of directing.

supervising and coordinating the works of the Central and Local Organs of
State Power and of the Bodies of Public Services.
directing -
supervising -
coordinating -
Central and local Organs of -
State Power
Public Services -
 10

5.5.1 Composition

The Pyithu Hluttaw formed the council of State with the following
persons elected from among its members:
(a) one member each elected by the States and Divisions from among
members of the Pyithu Hluttaw of the State or Division concerned;
(b) member elected by the member of the Pyithu Hluttaw from among
themselves, equal in number to the number of representatives elected
under above clause, and
(c) the Prime Minister
Members of the Council of State elected under clauses (a) and (b) of
Article 64 elect from among themselves the Chairman and the Secretary of the
Council of State and then obtain the approval of the Pyithu Hluttaw for such
elections.
The Chairman of the Council of State is the President of the Republic
and the President of the Republic represents the State.
formed -
elected -
concerned -
Prime Minister -
Council of State -
Chairman -
Secretary -
approved -
represent -

5.5.2 Powers and Functions

The Council of State is responsible forgiving effect to the provisions of

the Constitution and responsible to the Pyithu Hluttaw.
 11

According to Article 73, the Council of State had of following powers

and duties-
(a.) convene sessions of the Pyithu Hluttaw in consultation with the
Panel of Chairman of the Pyithu Hluttaw;
(b.) interpret the laws other than this Constitution for the purpose of
Uniformity:
(c.) promulgate laws enacted and rules made by the Pyithu Hluttaw.
(d.) submit lists of candidates from among the members of the
Phyithu Hluttaw to enable the Pyithu Hluttaw to elect the
Council of Ministers the Council of People’s justices the
Council of People’s Attorneys and the Council of People’s
Inspectors.
(e.) make decisions concerning the establishment of diplomatic
relations with foreign countries, severance of such relations and
appointment and recall of diplomatic representative:
(f.) make decisions concerning the entering into, ratification or
annulment of international treaties, or the withdrawal from such
treaties with the approval of the Pyithu Hluttaw;
(g.) make decisions concerning international agreements:
(h.) appoint or remove Deputy Minister:
(i.) appoint of dismiss heads of Bodies of public Services:
(j.) abrogate the decision and orders of the Central and Local
Organs of State Power if they are not consistent with the law:
(k.) Institute, confer or revoke titles, honours and awards:
(l.) grant pardons or amnesty.
The Council of State may make, if necessary ordinances having the
force of law on matters other than relating to State economic plans annual
budget and taxation, during the internal between sessions of the Pyithu
Hluttaw.
 12

The Council of State may take suitable military action in the face of
aggression against the State and may declare a State of emergency and
promulgate martial law in specified areas or in the entire State.
The Council of State direct supervise and co-ordinate the work of the
Central and Local Organs of State Power and of the Bodies of Public-Services
in accordance with the laws rules and resolutions passed by the Pyithu Hluttaw.
effect -
responsible -
convene -
sessions -
consultation -
Panel of Chairman -
interpret -
Uniformity -
promulgate -
rules -
submit -
candidates -
enable -
elect -
Council of Ministers -
Council of People’s Justices -
Council of People’s Attorneys -
Council of People’s Inspectors -
establishment -
diplomatic -
severance -
recall -
 13

ratification -
annulment -
international treaties -
withdrawal -
remove -
Deputy Minister -
dismiss -
head -
Bodies of public services -
abrogate -
consistent -
confer -
revoke -
titles -
honours and awards -
grant -
pardons or amnesty -
ordinance -
force of law -
annual budget -
taxation -
internal -
suitable military action -
aggression -
State of emergency -
martial law -
specified areas -
 14

entire -
supervise -
co-ordinate -
Bodies of Public-Services -
rules and resolutions -
passed -

5.6 Council of Ministers

The Council of Ministers is the hightest executive organ of the State and
responsible to the Pyithu Hluttaw when the Pyithu Hluttaw is in session and to
the Council of State when the Pyithu Hluttaw is not in session. The Pyithu
Hluttaw elects members of the Council of Ministers from among those
members of the Pyithu Hluttaw whose names are on the list submitted
collectively by members of the Council of State.
The Council of Ministers-
(a) is responsible to the management of executive economy
financial, social, cultural and foreign-affairs and national defense
of behalf of the Pyithu Hluttaw in accordance with the principle
of collective leadership;
(b)implements the socialist economic system through the
economic plans of all the national races;
(c)implements the resolutions of the Pyithy Hluttaw and the
orders of the Council of State;
(d)directs and co-ordinates the Ministers, organs of public
administration and the Executive Committees of the People’s
Councils at different levels;
The Council of Ministers shall be solely responsible for the submission of
the following, bills to the Pyithu Hluttaw through the Council of State for
enactment into law:
 15

(a) bills of economic Plans:

(b) bills on budgets:
(c) bills on taxation:
highest -
executive organ -
responsible -
session -
submitted -
collectively -
management -
executive -
financial -
national defense -
leadership -
implements -
national races -
resolutions -
co-ordinate -
organs of public administration Executive and -
Committee of the People’s Council

submission -
enactment -
economic plans -
budgets -
taxation -
bills -
 16

5.7 Council of People’s Justices

The Council of People’s Justices is the highest judicial organ of the

State. The Pyithu Hluttaw elects members of the Concil of People’s Justices
from among those members of the Pyithu Hluttaw names are on the list
submitted collectively by members of the Council of State.
The Council of People’s Justices is responsible to the Pyithu Hluttaw
and report to the Pyithu Hluttaw on the State of the administration of Justice.
When the Pyithu Hluttaw is not in session, the Council of People’s Justices is
responsible to the Council of State.
The Council of People’s Justices supervise all judicial organs and courts
within the State, and may form the necessary Judicial Courts only with its
members and administer Justice.
judicial organ -
elect -
submitted -
collectively -
Council of State -
responsible -
report -
administration of Justice -
session -
supervise -
Judicial Courts -
administer Justice -
 17

5.8 Council of People’s Attorneys

The Pyithu Hluttaw elects member of the Council of People’s Attorneys

from among those members of the Pyinthu Hluttaw whose names are on the list
submitted collectively by members of the Council of State.
The Council of People’s Attorneys
(a)protect and safeguard the Socialist System;
(b)protect and safeguard the rights and privileges of the working
people;
(c)tender legal advice to the Council of State and to the Council of
Ministers;
(d) report to the Council of State any acts of the Central and Local
Organs of State Power and of the Bodies of Public Services which
infringe the law.
The Council of People’s Attorney is responsible to the Pyithu
Hluttaw and when the Pyithu Hluttaw is not in session it is responsible to the
Council of State. It direct and supervise the Central Law Officers, State and
Divisional Law Officers and Township Law Officers.
submitted -
protect and safeguard -
privileges -
working people -
tender -
legal advice -
report -
acts -
Central and local organs of -
State Power
Bodies of Public Services -
 18

infringe -
session -
Council of State -
supervise -
Central law Officers -
State and Divisional law Officers -
Township law Officers -

5.9 Council of People’s Inspectors

The Council of People’s Inspectors is the highest organ of inspection of

public undertakings. The Pyithu Hluttaw elects members of the Council of
People’s Inspectors from among those members of the Pyithu Hluttaw whose
names are on the list submitted collectively by members of the Council of
State.
The Council of People’s Inspectors is responsible to the Pyithu Hluttaw
and to the Council of State when the Pyithu Hluttaw is not is session. It conduct
inspections to determine whether the activities of the local organs of State
Power, Ministries, Bodies of Public Services and such other organization as
may be prescribed by law prove beneficial to the interest of the public.
organ of inspection -
public undertakings -
submitted collectively -
responsible -
session -
conduct -
to determine -
activities -
Bodies of Public Services -
 19

prescribed -
beneficial -

5.10 People’s Council

The People’s Councils at different levels are local organs of state Power
and implement the following tasks within the framework of law:-
(a.) economic and social affairs and public administration:
(b.) administration of justice;
(c.) local security, defense, maintenance of rule of law and order:
(d.) Protection of the rights of the people in the area concerned:
(e.) Formulation of economic plans and their implementation:
(f.) Construction, settlement and rural and urban development:
(g.) Communization:
(h.) Preservation, protection and development of natural
environment:
People’s Councils formed for each State, Division, Township, Ward and
Village-tract. They report on local matters of importance and submit advice for
the benefit of the public from the lower to the higher levels of the People’s
Councils, up to the Council of State.
different levels -
implement -
framework -
affairs -
public administration -
administration of justice -
local security -
defense -
maintenance of order -
 20

rule of law -
protection -
area concerned -
formulation -
implementation -
construction -
settlement -
rural -
urban development -
communization -
preservation -
natural environment -
village-tract -
report -
local matters -
submit -
benefit -

5.11 Conclusion
1974 Constitution of the Socialist Republic of the Union of Burma
(Myanmar) contained 16 chapters and 209 Articles. Salient features of the 1974
constitution are unitary State with unicameral legislature, socialist economic
system, and a single party system. In other words, 1974 Constitution based on
the principle of unified power and did not accept the doctrine of separation of
power.
Salient features -
unitary state -
unicameral legislature -
socialist economic system -
 21

single party system -

unified power -
separation of power -
 CHAPTER - 6
STATE LAW AND ORDER RESTORATION COUNCIL AND
STATE PEACE AND DEVELOPMENT COUNCIL

In 1988, general discontent of the people had arisen on economic

declination and it led to the countrywide civil disturbance. Administrative
machinery was broken down and on 18th September. 1988, the State Law and
Order Restoration Council took over the power of the State. It abolished the
Pyithu Hluttaw various Local People’s Councils and Central Organs of State
Power. Legislative, executive and judicial powers have been vested in the
SLORC. It administered the country by Martial Law.
discontent -
arisen -
economic declination -
led -
countrywide -
disturbance -
Administrative machinery -
broken down -
took over -
abolished -
various -
Local People’s Councils -
legislative -
executive -
judicial powers -
vested -
administered -
Martial Law -
Various levels of local law and Order Restoration Councils are created
as follows:
State and Division Law and Order Restoration Council:
District Law and Order Restoration Council;
Township Law and Order Restoration Council:
Ward and Village tract-law and Order Restoration Council:
Council of People’s Justices and Central Court were abolished and new
Supreme Court has been established by Judiciary law of 1988. Council of
People’s Attorneys was also abolished and replaced by the Attorney-General
by the Attorney-General law of 1988.
The State Law and Order Restoration Council abolished single party
system and socialist economic system. It has paved the way for the multi-party
democratic State based on the political democracy and market oriented
economic system.
local law -
created -
Ward and Village tract -
Council of People’s Justices -
Central Court -ဗ
established -
Judiciary law -
Council of People’s Attorneys -
replaced -
Attorney-General -
On 27th may 1990 multi-party democracy general election was held and
from 9th January 1993. National Convention for the new constitution has been
held attended by the representatives of the various social strata of the people
including the members of elected representative and Parties representatives.
On 16 September 1993, National Convention adopted guidelines and
basic principles for the drafting of new constitution. Salient features of the
basic for the new constitution are as follows:
muiti-party democratic state based on the political democracy;
market-oriented economic system:
separation of power (Check and balance);
equally constituted regions and states forming the Union;
local self administered areas;
right of secession from Union is not permitted;
presidential system and bicameral legislature;
independence of judiciary;
Tatmadaw’s role in National Political leadership; setting up of the
Constitutional Tribunal.
Totally, 104 basic principles for the new constitution have been laid
down by the national Convention on 16th September. 1993 National
Convention will resume its session on January, 1994.
multi-party democracy -
general election -
National Convention -
held -
attended -
representatives -
strata -
elected representatives -
Parties representatives -
On 15th November, 1997, The State Law and Order Restoration Council
was abolished and The State Peace and Development Council took over the
power of the State. Since then, The SPDC has promulgated Laws and aiming
for the drafting of the new Constitution.

The Judiciary Law 1988 and the Attorney General Law 1988 were
abolished and the Judiciary Law 2000 and also Attorney General Law 2001
were enacted.
The State Peace and Development Council passed laws, rules,
regulations, orders and notifications. The methods of drafting and enacting
laws were formerly applied by the State Law and Order Restoration Council
continues to be applicable. The numbers of 35 laws were enacted by the State
Peace and Development Council up to 2001.

promulgated -
aiming -
drafting -
enacted -
rules -
regulations -
orders -
notifications -
applicable -
up to -

.
 Chapter -7

CONSTITUTION OF THE REPUBLIC OF THE UNION OF

MYANMAR 2008

7.1 Drafting of Constitution

Drafting of the detailed basic principles of the Constitution was drafted by the
eight groups‟ people representatives main structures are contained in the
Constitution of 2008. A Referendum was held a relating to the draft
Constitution. The State Peace and Development Council issued a notification
relating to hold a Referendum on the draft Constitution of 2008.Announcement
of the result of the Referendum held in 47 Townships in Yangon and
Ayeyawady Division, by the Commission of Referendum. (1/2008)
Announcement on result of the Referendum held in the whole Country, by the
Commission of Referendum (No. 12/2008).Announcement of Promulgation of
State Constitution of the Republic of the Union of Myanmar by the State Peace
and Development Council (No. 7/2008).

7.2 Basic Principles

Section 6. The Union‟s consistent objectives are:

(a) non-disintegration of the Union;

(b) non-disintegration of National solidarity;

(c) perpetuation of sovereignty;

(d) flourishing of a genuine, disciplined multi-party democratic system;

(e) enhancing the eternal principles of Justice, Liberty and Equality in the
Union and;
 2

(f) enabling the Defence Services to be able to participate in the National

political leadership role of the State.

Section 7. The Union practises genuine, disciplined multi-party

democratic system.

Section 8. The Union is constituted by the Union system.

Section 9.

(a) The existing seven Divisions are designated as seven Regions and the
existing seven States are designated as seven States. Those seven Regions
and seven States are of equal status.

(b) The names of those seven Regions and seven States are retained as
they exist.
 3

(c) If it is desired to change the name of a Region or a State, it shall be

done so with the enactment of a law after ascertaining the desire of
citizens residing in the Region or State concerned.

Section 10. No part of the territory constituted in the Union such as

Regions, States, Union Territories and Self-Administered Areas shall ever
secede from the Union.

Section 11.

(a) The three branches of sovereign power namely, legislative power,

executive power and judicial power are separated, to the extent possible,
and exert reciprocal control, check and balance among themselves.

(b) The three branches of sovereign power, so separated are shared

among the Union, Regions, States and Self-Administered Areas.
 4

Section 12.

(a) The legislative power of the Union is shared among the Pyidaungsu
Hluttaw, Region Hluttaws and State Hluttaws. Legislative power
stipulated by this Constitution shall be shared to the Self-Administered
Areas.

(b) The Pyidaungsu Hluttaw consisting of two Hluttaws, one Hluttaw

elected on the basis of township as well as population, and the other on an
equal number of representatives elected from Regions and States.

Section 13. There shall be a Region Hluttaw in each of the seven

Regions, and a State Hluttaw in each of the seven States.
 5

Section 14. The Pyidaungsu Hluttaw, the Region Hluttaws and the State
Hluttaws include the Defence Services personnel as Hluttaw
representatives nominated by the Commander-in-Chief of the Defence
Services in numbers stipulated by this Constitution.

Section 15. For National races with suitable population, National races
representatives are entitled to participate in legislature of Regions or
States and Self-Administered Areas concerned.

Section 16. The Head of the Union and the Head of Executive of the
Union is the President.

Section 17.

(a) The executive power of the Union is shared among the Pyidaungsu,
Regions and States; Self-Administrative power shall be shared between
Self-Administered Areas as prescribed by this Constitution.
 6

(b) In the executive of the Union, Regions, States, Union Territory, Self-

Administered Areas and districts, Defence Services personnel, nominated

by the Commander-in-Chief of the Defence Services to undertake

responsibilities of the defence, security, border administration, so forth,
shall be included.

(c) For National races of which representatives are so permitted to

participate in legislature of Regions, States or Self-Administered Areas in
accord with Section 15, such representatives are to be permitted to
participate, mainly, to undertake their National races affairs.
 7

Section 18.

(a) The judicial power of the Union is shared among the Supreme Court
of the Union, High Courts of the Regions, High Courts of the States and
Courts of different levels including Courts of Self-Administered Areas.

(b) There shall be one Supreme Court of the Union. The Supreme Court
of the

Union is the highest Court of the Republic.

(c) The Supreme Court of the Union has powers to issue writs.

(d) A High Court of the Region or State is constituted in each Region or

State.

Section 19.

The following are prescribed as judicial principles :

(a) to administer justice independently according to law;

(b) to dispense justice in open court unless otherwise prohibited by law;

 8

(c) to guarantee in all cases the right of defence and the right of appeal
under law.

Section 20.

(a) The Defence Services is the sole patriotic defence force which is
strong, competent and modern.

(b) The Defence Services has the right to independently administer and
adjudicate all affairs of the armed forces.

(c) The Commander-in-Chief of the Defence Services is the Supreme

Commander of all armed forces.

(d) The Defence Services has the right to administer for participation of
the entire people in Union security and defence.

(e) The Defence Services is mainly responsible for safeguarding the

nondisintegration of the Union, the non-disintegration of National
solidarity and the perpetuation of sovereignty.

(f) The Defence Services is mainly responsible for safeguarding the

Constitution.
 9

Section 21.

(a) Every citizen shall enjoy the right of equality, the right of liberty and
the right of justice, as prescribed in this Constitution.

(b) No citizen shall be placed in custody for more than 24 hours without
the permission of a Court.

(c) Every citizen is responsible for public peace and tranquility and
prevalence of law and order.

(d) Necessary law shall be enacted to make citizens‟ freedoms, rights,

benefits, responsibilities and restrictions effective, steadfast and
complete.
 10

Section 22.

The Union shall assist:

(a) to develop language, literature, fine arts and culture of the National
races;

(b) to promote solidarity, mutual amity and respect and mutual assistance
among the National races;

(c) to promote socio-economic development including education, health,

economy, transport and communication, so forth, of less-developed
National races.
 11

Section 23. The Union shall :

(a) enact necessary laws to protect the rights of the peasants;

(b) assist peasants to obtain equitable value of their agricultural produce.

Section 24. The Union shall enact necessary laws to protect the rights of
workers.

Section 25. The Union shall assist to promote the interests of the
intellectuals and intelligent.

Section 26.

(a) Civil Services personnel shall be free from party politics.

(b) The Union shall enact necessary laws for Civil Services personnel to
have security and sufficiency of food, clothing and shelter, to get
maternity benefits for married women in service, and to ease livelihood
for welfare of retired Service personnel.
 12

Section 27. The Union shall assist development, consolidation and

preservation of National culture.

Section 28. The Union shall :

(a) earnestly strive to improve education and health of the people;

(b) enact the necessary law to enable National people to participate in

matters of their education and health;

(c) implement free, compulsory primary education system;

(d) implement a modern education system that will promote all-around

correct thinking and a good moral character contributing towards the
building of the Nation.
 13

Section 29. The Union shall provide inputs, such as technology,

investments, machinery, raw materials, so forth, to the extent possible for
changeover from manual to mechanized agriculture.

Section 30. The Union shall provide inputs, such as technology,

investments, machinery, raw materials, so forth, to the extent possible, for
development of industries.

Section 31. The Union shall, to the extent possible, assist to reduce
unemployment among the people.

Section 32. The Union shall :

(a) care for mothers and children, orphans, fallen Defence Services
personnel‟s children, the aged and the disabled;

(b) ensure disabled ex-Defence Services personnel a decent living and

free vocational training.
 14

Section 33. The Union shall strive for youth to have strong and dynamic
patriotic spirit, the correct way of thinking and to develop the five noble
strengths.

Section 34. Every citizen is equally entitled to freedom of conscience and

the right to freely profess and practise religion subject to public order,
morality or health and to the other provisions of this Constitution.

Section 35. The economic system of the Union is market economy

system.
 15

Section 36. The Union shall :

(a) permit all economic forces such as the State, regional organizations,
cooperatives, joint-ventures, private individual, so forth, to take part in

economic activities for the development of National economy;

(b) protect and prevent acts that injure public interests through
monopolization or manipulation of prices by an individual or group with
intent to endanger fair competition in economic activities;

(c) strive to improve the living standards of the people and development
of investments;

(d) not nationalize economic enterprises;

(e) not demonetize the currency legally in circulation.

 16

Section 37. The Union :

(a) is the ultimate owner of all lands and all natural resources above and
below the ground, above and beneath the water and in the atmosphere in
the Union;

(b) shall enact necessary law to supervise extraction and utilization of

State-owned natural resources by economic forces;

(c) shall permit citizens right of private property, right of inheritance,

right of private initiative and patent in accord with the law.

Section 38.

(a) Every citizen shall have the right to elect and be elected in accord with
the law.

(b) Electorate concerned shall have the right to recall elected people‟s
representatives in accord with the provisions of this Constitution.
 17

Section 39. The Union shall enact necessary law to systematically form
political parties for flourishing of a genuine, disciplined multi-party
democratic system.

Section 40.

(a) If there arises a state of emergency characterized by inability to

perform executive functions in accord with the provisions of the
Constitution in a Region or a State or a Self-Administered Area, the
President is empowered to exercise executive power in that Region, State
or Self-Administered Area and, if necessary in doing so, the President is
empowered to exercise legislative powers concerning that Region, State
or Self-Administered Area in accord with the provisions of this
Constitution.

(b) If there arises or there is sufficient reason to arise a state of emergency

endangering life and property of the people in a Region, State or Self-
Administered Area, the Defence Services has the right, in accord with the
provisions of this Constitution, to prevent that danger and provide
protection.

(c) If there arises a state of emergency that could cause disintegration of

the Union, disintegration of national solidarity and loss of sovereign
power or attempts therefore by wrongful forcible means such as
insurgency or violence, the Commander-in-Chief of the Defence Services
 18

has the right to take over and exercise State sovereign power in accord
with the provisions of this Constitution.
 19

Section 41. The Union practises independent, active and non-aligned

foreign policy aimed at world peace and friendly relations with nations
and upholds the principles of peaceful coexistence among nations.

Section 42.

(a) The Union shall not commence aggression against any nation.

(b) No foreign troops shall be permitted to be deployed in the territory of

the Union.

Section 43. No Penal law shall be enacted to provide retrospective effect.

Section 44. No penalty shall be prescribed that violates human dignity.

Section 45. The Union shall protect and conserve natural environment.

Section 46. A Constitutional Tribunal shall be set up to interpret the

provisions of the Constitution, to scrutinize whether or not laws enacted
by the Pyidaungsu Hluttaw, the Region Hluttaws and the State Hluttaws
 20

and functions of executive authorities of Pyidaungsu, Regions, States and

Self-Administered Areas are in conformity with the Constitution, to
decide on disputes relating to the Constitution between Pyidaungsu and
Regions, between Pyidaungsu and States, among Regions, among States,
and between Regions or States and Self-Administered Areas and among
Self-Administered Areas themselves, and to perform other duties
prescribed in this Constitution.

Section 47. The Basic Principles set forth in this Chapter, and Chapter 8,
Citizen, Fundamental Rights, and Duties of the Citizen, the term “Union”
means person or body exercising the legislative or executive authority of
the Union under this Constitution according as the context may require.
 21

Section 48. The Basic Principles of the Union shall be the guidance in
enacting laws by legislature and in interpreting the provisions of this
Constitution and other laws.

7.3 State Structure

Section 49. The Union is delineated and constituted by seven Regions,

seven States and the Union territories as follows:

(a) Kachin State;

(b) Kayah State;

(c) Kayin State;

(d) Chin State;

(e) Sagaing Region;

(f) Taninthayi Region;

(g) Bago Region;

(h) Magway Region;

(i) Mandalay Region;

(j) Mon State;

(k) Rakhine State;

 22

(l) Yangon Region;

(m) Shan State;

(n) Ayeyawady Region; and

(o) Union territories.

 23

Section 50.

(a) Nay Pyi Taw, the capital of the Union, prescribed as Union territory,
shall be under the direct administration of the President.

(b) If there arises a need to specify areas that have special situations
concerning national defence, security, administration and economy, so
forth, those areas may be prescribed as Union territories under the direct
administration of the President after enacting law.

Section 51. The Union is constituted as follows:

(a) villages are organized as village-tract;

(b) wards are organized as town or township;

(c) village-tracts and wards or towns are organized as township;

(d) townships are organized as district;

(e) districts are organized as Region or State;

(f) townships in a Self-Administered Zone are organized as Self-

Administered Zone;

(g) townships in a Self-Administered Division are organized as District

and such Districts are organized as Self-Administered Division;
 24

(h) If there are Self-Administrated Zone or Self-Administered Division in

a Region or a State, those Self-Administered Divisions, Self-
Administered Zones and Districts are organized as Region or State;

(i) Regions, States and Union territories are organized as the Republic.

Section 52.
 25

(a) If there arises a need to re-delineate the territorial boundary of the

Union, the President shall firstly intimate the Head of the Pyidaungsu
Hluttaw to ask for the opinion of the Pyidaungsu Hluttaw.

(b) The Head of the Pyidaungsu Htuttaw, after receiving the intimation of
the President, shall obtain the opinion of the Hluttaw representatives as
follows :

(i) assenting votes of more than half of the total number of representatives

in the Hluttaw, elected in equal numbers from Regions and States;

(ii) assenting votes of more than half of the total number of

representatives

in the Hluttaw, elected as representatives on the basis of township as well

as population;

(iii) assenting votes of more than half of the total number of

representatives of the two Hluttaws from the Region or State involved in
the boundary concerned.

(c) The Head of the Pyidaungsu Hluttaw, after obtaining the assenting
votes as mentioned above, shall inform the President for re-delineating
the territorial boundary of the Union as necessary.

(d) In accord with the above-mentioned procedures, if either of the

Hluttaws, or representatives from the Region or State involved in the
territorial boundary concerned resolve against re-delineation, the opinion
of the Pyidaungsu Hluttaw shall be obtained. If three-fourths and above
of the total number of the Pyidaungsu Hluttaw representatives cast
assenting votes, the Head of the Pyidaungsu Hluttaw shall inform the
President to re-delineate the territorial boundary as necessary.
 26

(e) The President shall take necessary measures for re-delineation of the
territorial boundary of the Union, as necessary, after obtaining the
opinion ofthe Pyidaungsu Hluttaw.
 27

Section 53.

(a) If there arises a cause to re-delineate the territorial boundary of a

Region or a State, the prior consent of the electorate residing within the
township concerned shall be obtained.

(b) In obtaining consent, re-delineation of the territorial boundary shall

not be executed at all in the absence of assenting votes of more than half
of the total number of the electorate residing within the township
concerned.

(c) If more than half of the total number of eligible voters residing within
the township concerned cast assenting vote for re-delineation of the
territorial boundary, the consent of the Hluttaw representatives of the
Region or State involved in the territorial boundary concerned shall be
obtained.

(d) The President shall re-delineate the territorial boundary of the Region
or State concerned with the consent of the Pyidaungsu Hluttaw, after
 28

obtaining the assenting votes of three-fourths and above of the total

number of representatives from the Region or the State concerned.

(e) The resolution of the Pyidaungsu Hluttaw shall be obtained if a

Region Hluttaw or a State Hluttaw concerned decided against re-
delineation of the territorial boundary.

(f) The President shall, as necessary, re-delineate the territorial boundary

of a Region or a State if three-fourths and above of the total number of
representatives in the Pyidaungsu Hluttaw assent to the re-delineation of
the territorial boundary.
 29

Section 54. Where there arises a situation to alter or form the territorial
boundary or change the name of a village, village-tract, ward, town,
township or district of a Region, State, Self-Administered Division or
Self-Administered Zone concerned, the President shall act,as necessary,
upon the recommendation of the Chief Minister of the Region or State
concerned.

Section 55. If it is desired to change the name of a Self-Administered

Division or Self-Administered Zone, the same procedure shall be applied
as in the case of changing the name of a Region or State.
 30

Section 56. The Self-Administered Divisions and Self-Administered

Zones are delineated as follows :

(a) grouping Leshi, Lahe and Namyun townships in Sagaing Division as

Naga Self-Administered Zone;

(b) grouping Ywangan and Pindaya townships in Shan State as Danu

Self- Administered Zone;

(c) grouping HoPong, HsiHseng and Pinlaung townships in Shan State as

Pa-O Self-Administered Zone;

(d) grouping Namhsan and Manton townships in Shan State as Pa Laung

Self- Administered Zone;

(e) grouping Konkyan and Laukkai townships in Shan State as Kokang

Self- Administered Zone;

(f) grouping six townships – Hopang, Mongma, Panwai, Nahpan,

Metman and Pangsang (Pankham) townships in Shan State as two
districts which are forged into „Wa‟ Self-Administered Division.
 31

7.5 Legislature

7.5.1 Formation of the Pyidaungsu Hluttaw

Section 74.The Pyidaungsu Hluttaw comprises of the following two

Hluttaws :

(a) in accord with the provisions of Section 109, the Pyithu Hluttaw
formed with Hluttaw representatives elected on the basis of township as
well as population and Hluttaw representatives being the Defence
Services Personnel nominated by the Commander-in-Chief of the
Defence Services;

(b) in accord with the provisions of Section 141, the Amyotha Hluttaw
formed with Hluttaw representatives elected in equal numbers from
Regions and States and Hluttaw representatives being the Defence
 32

Services Personnel nominated by the Commander-in-Chief of the

Defence Services.

7.5.2 The Head and the Deputy Heads of the respective Hluttaws

Section 75. On the day of commencement of the first Hluttaw session for
each term of the Hluttaw concerned, the person who is to conduct and
supervise the Hluttaw session held for the taking of affirmation of office
by Hluttaw representatives and for electing the Hluttaw Speaker and
Deputy Speaker shall be called the Chairperson, the Head and the Deputy
Head of the Pyidaungsu Hluttaw shall be called the Speaker and the
Deputy Speaker, the Head and the Deputy Head of the Pyithu Hluttaw,
the Amyotha Hluttaw, the Region Hluttaw or the State Hluttaw shall be
called the Speaker and the Deputy Speaker.
 33

7.5.3 Performance of duties by the Speaker and the Deputy Speaker

of the Pyidaungsu Hluttaw

Section 76. (a) The Speaker and the Deputy Speaker of the Amyotha
Hluttaw shall also serve as the Speaker and the Deputy Speaker of the
Pyidaungsu Hluttaw from the day of term of the Pyithu Hluttaw
commences up to the end of 30 months and the Speaker and the Deputy
Speaker of the Pyithu Hluttaw shall also serve as the Speaker and the
Deputy Speaker of the Pyidaungsu Hluttaw for the remaining term.

(b) When the Speaker of the Pyidaungsu Hluttaw is unable to perform the
duties of the Speaker, the Deputy Speaker shall temporarily perform the
duties of the Speaker.
 34

7.5.4 Functions of the Speaker of the Pyidaungsu Hluttaw

Section 77. The Speaker of the Pyidaungsu Hluttaw shall:

(a) supervise the Pyidaungsu Hluttaw sessions;

(b) invite the President, if he is intimated of the President‟s desire to

address the Pyidaungsu Hluttaw;

(c) have the right to invite organizations or persons representing any of

the Union level organizations formed under the Constitution to attend the
Pyidaungsu Hluttaw session and give clarifications on matters relating to
ongoing discussions, if necessary;

(d) perform other duties and powers prescribed by the Constitution or any
law.
 35

7.5.5 Convening the Sessions of the Pyidaungsu Hluttaw

Section 78. The first regular session of the Pyidaungsu Hluttaw shall be
held within 15 days from the first day of the commencement of the first
session of the Pyithu Hluttaw. The Speaker of the Pyidaungsu Hluttaw
shall convene the Pyidaungsu Hluttaw.

Section 79. The Speaker of the Pyidaungsu Hluttaw shall convene the
Pyidaungsu Hluttaw regular session at least once a year. The maximum
interval between the two regular sessions shall not exceed twelve months.

Section 80. The following functions shall be carried out at the Pyidaungsu
Hluttaw session :

(a) recording the address delivered by the President;

(b) reading and recording the message sent by the President and other
messages permitted by the Speaker;

(c) submitting, discussing and resolving on a Bill;

 36

(d) discussing and resolving on the remarks of the President concerning a

Bill approved by the Pyidaungsu Hluttaw;

(e) discussing and resolving on matters to be undertaken by the

Pyidaungsu Hluttaw in accord with the provisions of the Constitution;

(f) discussing, resolving and recording the reports submitted to the

Pyidaungsu Hluttaw;

(g) submitting proposals, discussing and resolving;

(h) raising questions and replying;

(i) undertaking matters approved by the Speaker of the Pyidaungsu

Hluttaw.
 37

Section 81. Matters that require resolutions, consents and approvals of the
Pyidaungsu Hluttaw shall be implemented as follows :

(a) if the Pyidaungsu Hluttaw is in session, the matter shall be discussed

and resolved at that session;

(b) if the Pyidaungsu Hluttaw is not in session, the matter shall be

discussed and resolved at the nearest Pyidaungsu Hluttaw session;

(c) a special session or an emergency session shall be convened to discuss

and resolve matters which need urgent action in the interest of the public.

Section 82. The Speaker of the Pyidaungsu Hluttaw may convene a

special session or an emergency session, if necessary.
 38

Section 83. The Speaker of the Pyidaungsu Hluttaw shall convene a

special session or an emergency session as soon as possible when the
President informs him to do so.

Section 84. The Speaker of the Pyidaungsu Hluttaw shall convene a

special session as soon as possible, if at least one-fourth of the total
number of the representatives so require.

Section 85. (a) The first day session of the Pyidaungsu Hluttaw shall be
valid if more than half of the total number, who have the right to attend
the session, are present. The session, if invalid, shall be adjourned.

(b) The sessions that are adjourned due to invalidity in accord with the
Sub-Section (a) as well as the valid sessions that are extented shall be
valid if at least one-third of the Hluttaw representatives are present.
 39

Section 86. (a) A matter that shall be resolved in the Pyidaungsu Hluttaw,
save as otherwise provided by the Constitution, shall be determined by a
majority of votes 30 of the representatives of the Pyidaungsu Hluttaw
who are present and voting.

(b) The Speaker of the Pyidaungsu Hluttaw or the Deputy Speaker acting
as such shall not vote in the first instance, but shall have and exercise a
casting vote in the case of an equality of votes.

Section 87. If a representative of the Pyidaungsu Hluttaw is, without

permission of the Speaker of the Pyidaungsu Hluttaw, absent from
sessions of the Pyidaungsu Hluttaw for a period of at least 15 consecutive
days, the Speaker shall inform the Hluttaw concerned to take action
against the representative according to the prescribed procedures. In
 40

computing the said period of 15 days, no account shall be taken of any

period during which the session is adjourned.

Section 88. Although there are vacant seats, the Pyidaungsu Hluttaw shall
have the right to carry out its functions. Moreover, the resolutions and
proceedings of the Pyidaungsu Hluttaw shall not be annulled,
notwithstanding the acts of some person who was not entitled to do so sat
or voted or took part in the proceedings are later discovered.

Section 89. The proceedings and the records of the Pyidaungsu Hluttaw
shall be published. However, the proceedings and the records prohibited
 41

by any law or the resolution of the Pyidaungsu Hluttaw shall not be

published.

Section 90. Members of the organizations representing any of the Union

level organizations formed under the Constitution while attending the
Pyidaungsu Hluttaw with the permission of the Speaker have the right to
explain, converse and discuss the Bills and other matters in connection
with the respective organization.

Section 91. The Union level organizations formed under the Constitution
may submit the general situation in connection with the respective
organization, which should be submitted to the Pyidaungsu Hluttaw with
the permission of the Speaker.

Section 92. (a) Subject to the provisions of the Constitution and the
provisions of the law relating to the Pyidaungsu Hluttaw, the
 42

representatives of the Pyidaungsu Hluttaw shall have freedom of speech

and voting at the Pyidaungsu Hluttaw and the Pyidaungsu Hluttaw Joint
Committee. Concerning the submitting, discussing and performing at the
Pyidaungsu Hluttaw and the Joint Committee, no action shall be taken
against, a representative of the Pyidaungsu Hluttaw, except under its law.

(b) Subject to the provisions of the Constitution and the provisions of the
lawrelating to the Pyidaungsu Hluttaw, members of the organizations or
personsrepresenting any of the Union level organizations formed under
the Constitution who are invited to attend the Pyidaungsu Hluttaw session
have the freedom of speech. No action shall be taken against such
members or persons for their submission and speeches in Pyidaungsu
Hluttaw byother law except under its law.

(c) If the persons mentioned in Sub-Sections (a) and (b) committed

assault in exercising the said privileges, they shall be liable to punishment
under the regulations, by-laws, procedures of the Pyidaungsu Hluttaw or
the existing law.
 43

Section 93. If there is a need to arrest a Pyidaungsu Hluttaw

representative attending the Pyidaungsu Hluttaw session or a person
attending the Pyidaungsu Hluttaw session with the permission or
invitation of the Speaker of the Pyidaungsu Hluttaw, credible evidence
shall be submitted to the Speaker of the Pyidaungsu Hluttaw. He shall not
be arrested without the prior permission of the Speaker of the Pyidaungsu
Hluttaw.
 44

Section 94. No action shall be instituted relating to the reports,

documents, and Hluttaw records published by the Pyidaungsu Hluttaw or
under its authority.

7.5.6 Legislation

Section 95.

(a) If a Bill initiated in the Pyithu Hluttaw or the Amyotha Hluttaw is

approved by both Hluttaws, it shall be deemed that the Bill is approved
by the Pyidaungsu Hluttaw.

(b) If there is a disagreement between the Pyithu Hluttaw and the

Amyotha Hluttaw concerning a Bill, the Bill shall be discussed and
resolved in the Pyidaungsu Hluttaw.

Section 96. The Pyidaungsu Hluttaw shall have the right to enact laws for
the entire or any part of the Union related to matters prescribed in
Schedule One of the Union Legislative List.
 45

Section 97.

(a) When the Pyidaungsu Hluttaw enacts a law, it may :

(i) authorize to issue rules, regulations and by-laws concerning that law to
any Union level organization formed under the Constitution;

(ii) authorize to issue notifications, orders, directives and procedures to

the respective organization or authority.

(b) The rules, regulations, notifications, orders, directives, and procedures

issued under the power conferred by any law shall be in conformity with
the provisions of the Constitution and the relevant law.

(c) If both the Pyithu Hluttaw and the Amyotha Hluttaw resolve to annul
or amend any rule, regulation or by-law, it shall be deemed that the rule,
regulation, or by-law is annulled or amended by the Pyidaungsu Hluttaw.

(d) If there is a disagreement to annul or amend any rule, regulation or

by-law between the Pyithu Hluttaw and the Amyotha Hluttaw, it shall be
discussed and resolved at the Pyidaungsu Hluttaw.

(e) If a resolution is passed to annul or amend any rule, regulation or by-

law under Sub-Section (c) or (d), the resolution shall be without prejudice
to the validity of any action previously taken under the relevant rule,
regulation or by-law.
 46

7.5.7 Legislation relating to Other Matters

Section 98. The legislative power is vested in the Pyidaungsu Hluttaw

relating to other matters not enumerated in the legislative list of the
 47

Union, Region or State and Self-Administered Division Leading Body or

Self-Administered Zone Leading Body.

7.5.8 Legislation relating to Union Territories

Section 99. The Pyidaungsu Hluttaw shall enact the required laws if the
need arises to do so for the Union territories relating to matters for which
legislative powers are vested to the Region Hluttaw or the State Hluttaw,
or Self-Administered Division Leading Body or Self-Administered Zone
Leading Body.

7.5.9 Submission of Bill

Section 100. (a) The Union level organizations formed under the
Constitution shall have the right to submit the Bills relating to matters
they administered among the matters included in the Union Legislative
List to the Pyidaungsu Hluttaw in accord with the prescribed procedures.
 48

(b) Bills relating to national plans, annual budgets and taxation, which are
to be submitted exclusively by the Union Government shall be discussed
and resolved at the Pyidaungsu Hluttaw in accord with the prescribed
procedures.

Section 101. The Bills submitted to the Pyidaungsu Hluttaw by the Union
level organizations formed under the Constitution, except the Bills that
are prescribed in the Constitution to be discussed and resolved
exclusively at the Pyidaungsu Hluttaw, are entitled to initiate and discuss
at either the Pyithu Hluttaw or the Amyotha Hluttaw in accord with the
prescribed procedures.
 49

Section 102. The Bills, which are to be discussed and resolved

exclusively at the Pyidaungsu Hluttaw need to be vetted before being
discussed at the Pyidaungsu Hluttaw, those Bills shall be vetted jointly by
the Pyithu Hluttaw Bill Committee and the Amyotha Hluttaw Bill
Committee, and the findings and remarks of the Joint Committee together
with the Bill may be submitted to the Pyidaungsu Hluttaw session in
accord with the prescribed procedures.

7.5.10 Promulgation as Law

Section 105. (a) The President shall sign the Bills approved or the Bills
deemed to be approved by the Pyidaungsu Hluttaw, within 14 days after
the day of receipt, and shall promulgate it as Law.

(b) The President, within the prescribed period, may send the Bill back to
the Pyidaungsu Hluttaw together with his comments.

(c) If the President does not send the Bill back to the Pyidaungsu Hluttaw
together with his signature and comments within the prescribed period,
orif the President does not sign to promulgate, on the day after the
 50

completion of that period, the Bill shall become a law as if he had signed
it.

Section 106. (a) If the President sends the Bill back to the Pyidaungsu
Hluttaw together with his comments within the prescribed period, the
Pyidaungsu Hluttaw, after discussion of the President‟s comments, may
accept his comment and resolve to amend the Bill or may resolve to
approve the Bill as it is without accepting the President‟s comment.

(b) When the Bill which is amended in accord with the President‟s
comment or the Bill which is approved as it is without accepting the
President‟s comment is sent back to him by the resolution of the
Pyidaungsu Hluttaw, the President shall sign the Bill and promulgate it as
law within seven days after receiving the Bill back.
 51

(c) If the Bill sent back by the Pyidaungsu Hluttaw is not signed by the
President within the prescribed period, it shall become law as if he had
signed it on the last day of the prescribed period.

107. The laws signed by the President or the laws deemed to have been
signed by him shall be promulgated by publication in the official gazette.
The Law shall come into operation on the day of such promulgation
unless the contrary intention is expressed.
 52

108. The Pyidaungsu Hluttaw :

(a) shall give the resolution on matters relating to ratifying, annulling and
revoking from international, regional or bilateral treaties, agreements
submitted by the President;

(b) may confer the authority on the President to conclude, annul and
revoke any kind of international, regional or bilateral treaties or
agreements without the approval of the Pyidaungsu Hluttaw.

7.6 Pyithu Hluttaw

7.6.1 Formation of the Pyithu Hluttaw

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Section 109. The Pyithu Hluttaw shall be formed with a maximum of 440
Hluttaw representatives as follows :

(a) not more than 330 Pyithu Hluttaw representatives elected prescribing
electorate in accord with law on the basis of township as well as
population or combining with an appropriate township which is
contagious to the newly-formed township if it is more than 330
townships;

(b) not more than 110 Pyithu Hluttaw representatives who are the
Defence Services personnel nominated by the Commander-in-Chief of
the Defence Services in accord with the law.

7.6.2 Election of the Pyithu Hluttaw Chairperson

Section 110. (a) A Pyithu Hluttaw representative shall be elected as the

Chairperson at the commencement of the first session of the Pyithu
Hluttaw for its term.
 54

(b) The Chairperson shall take an affirmation of office before the Pyithu
Hluttaw;

(c) The Chairperson shall supervise the Pyithu Hluttaw session up to the
completion of the election of the Speaker and the Deputy Speaker of the
Pyithu Hluttaw.

7.6.3 Election of the Speaker and the Deputy Speaker of the Pyithu
Hluttaw

Section 111. (a) (i) The Pyithu Hluttaw representatives shall elect a
Speaker and a Deputy Speaker from among the Pyithu Hluttaw
representatives.

(ii) When the seat of the Speaker or the Deputy Speaker becomes vacant,
the substitution shall be made at the nearest session of the Pyithu
Hluttaw.

(iii) When the Speaker is unable to perform the duties of the Speaker, the
Deputy Speaker shall temporarily perform the duties of the Speaker.

(b) The law relating to procedures to elect the Speaker and the Deputy
Speaker of the Pyithu Hluttaw shall be enacted.
 55

7.6.4 Functions of the Speaker of the Pyithu Hluttaw

Section 112. The Speaker of the Pyithu Hluttaw shall :

(a) supervise the Pyithu Hluttaw sessions;

(b) invite the President, if he is intimated of the President‟s desire to

address the Pyithu Hluttaw;

(c) have the right to invite members of the organization or persons

representing any of the Union level organizations formed under the
Constitution to attend the Pyithu Hluttaw and give clarifications on
matters relating to ongoing discussions of the Pyithu Hluttaw session, if
necessary;

(d) perform other duties and exercise powers prescribed by the

Constitution or any law.
 56

7.6.5 Performance and termination of duties of the Speaker and the

Deputy Speaker of the Pyithu Hluttaw

Section 113. (a) The Speaker and the Deputy Speaker of the Pyithu
Hluttaw shall perform their duties until the first session of the next term
of the Pyithu Hluttaw is held.

(b) If the Speaker or the Deputy Speaker resigns or has ceased to be a

Pyithu Hluttaw representative, or has no right to continue to stand as a
Pyithu Hluttaw representative, or is suspended from his position as the
Speaker or the Deputy Speaker by the Pyithu Hluttaw, or has passed
away, he shall have ceased from his position.
 57

Section 114. Duties, powers and rights of the Speaker and the Deputy
Speaker of the Pyithu Hluttaw shall be prescribed by law.

7.6.6 Formation of the Pyithu Hluttaw Committee, Commission and

Bodies

Section 115.

(a) The Pyithu Hluttaw shall form Bill Committee, Public Accounts
Committee,Hluttaw Rights Committee, and Government‟s Guarantees,
Pledges and Undertakings Vetting Committee with the Pyithu Hluttaw
representatives.

(b) When the occasion arises to have studies made and submitted on
defence and security matters or Military affairs, the Pyithu Hluttaw shall
form the Defence and Security Committee with the Pyithu Hluttaw
representatives who are the Defence Services Personnel, for a limited
time. The Defence and Security Committee so formed may, if necessary,
be included suitable Pyithu Hluttaw representatives who are not the
Defence Services Personnel in accord with the volume of work.
 58

(c) If there arises a need to study and submit other affairs, in addition to
legislature, executive, national races affairs, economics, finance, social
and foreign affairs, Hluttaw Committees may be formed with the Pyithu
Hluttaw representatives for a limited time.

(d) The Pyithu Hluttaw shall determine the number of members, duties,
powers, rights, and terms of Pyithu Hluttaw Committees.
 59

Section 116. If there arises a certain matter to co-ordinate with the

Amyotha Hluttaw, the Pyithu Hluttaw may elect and assign its
representatives who will serve with the Joint Committee comprising an
equal number of representatives from the Pyithu Hluttaw and the
Amyotha Hluttaw to form that Committee. The term of the Joint
Committee shall be until the time they have submitted the report to the
Hluttaw concerned.

Section 117. When both the Pyithu Hluttaw and the Amyotha Hluttaw
have certain matters to study, apart from matters to be performed by the
Committees as prescribed in Sub-Sections (a) and (b) of Section 115, the
Speakers of these Hluttaws may co-ordinate among themselves and form
a Joint Committee comprising an equal number ofrepresentatives from
the Pyithu Hluttaw and the Amyotha Hluttaw. The Pyithu Hluttaw may
elect and assign the Pyithu Hluttaw representatives included in that
Committee. The term of the Joint Committee shall be until the time they
have submitted the report to the Hluttaw concerned.
 60

Section 118.

(a) If there arises a need to study the remaining matters other than those
studied by the Pyithu Hluttaw Committees, the Pyithu Hluttaw may form

Commissions and Bodies with the Pyithu Hluttaw representatives or

including suitable citizens.

(b) In forming the above Commissions and Bodies, the Pyithu Hluttaw
shall determine the number of members, duties, powers, rights, and the
terms of the said Commissions and Bodies.

7.6.7 Term of the Pyithu Hluttaw

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Section 119. The term of the Pyithu Hluttaw is five years from the day of
its first session.

7.6.8 Qualification of the Pyithu Hluttaw representatives

Section 120. Persons who possess the following qualifications shall be

entitled to be elected as the Pyithu Hluttaw representatives :

(a) person who has attained the age of 25 years;

(b) citizen who was born of both parents who are citizens;

(c) person who has resided in the Union of Myanmar for at least ten
consecutive

years up to the time of his election as Pyithu Hluttaw representative;

Proviso: The official period of stay in a foreign country with the

permission

of the Union shall be counted as a residing period in the Union,

(d) person who possesses qualifications prescribed by the Election Law.

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7. 6. 9 Disqualification for the Pyithu Hluttaw Representatives

Section 121. The following persons shall not be entitled to be elected as

the Pyithu Hluttaw representatives :

(a) a person serving prison term, having been convicted by the Court
concerned for having committed an offence;

(b) a person who has no right to be elected a Pyithu Hluttaw

representative due to having committed an offence relating to
disqualification for the Pyithu Hluttaw representative and being convicted
for such offence, unless the period specified by the authority for him has
not expired, before or after the Constitution comes into operation;

(c) person who is of unsound mind as adjudged by the relevant law;

(d) person who is an undischarged insolvent as being declared by the

relevant court;

(e) person who owes allegiance to a foreign government, or subject to a

foreign government or a citizen of a foreign country;

(f) person who is entitled to enjoy the rights and privileges of a subject of
a foreign government or a citizen of a foreign country;
 63

(g) person himself or is of a member of an organization who obtains and

utilizes directly or indirectly the support of money, land, housing,
building, vehicle, property, so forth, from government or religious
organization or other organizations of a foreign country;

(h) person himself or is of a member of an organization who abets the act

of inciting, giving speech, conversing or issuing declaration to vote or not
to vote based on religion for political purpose;

(i) member of a religious order;

(j) Civil Services personnel;

Proviso: The expression shall not be applied to Civil Services personnel

including the Defence Services personnel selected and appointed in the
Hluttaws and organizations formed under the Constitution.

(k) person himself or is of a member of an organization who obtains and

utilizes directly or indirectly the State-owned money, land, housing,
building,vehicle, property, so forth;

Proviso: (i) The expression „State-owned money‟ does not include

pension, allowance, money or salary, allowances, money officially
granted by the Union for services rendered for the benefit of the Union;

(ii) The expression „State-owned land, housing, building, vehicles and

property‟ does not include State-owned land, housing, building and
apartments, other building and apartments, State-owned aircraft, trains,
vessels and motor vehicles and property, so forth, which have been
permitted by the Union to be used under an existing law or as required by
duty, or leased from the Union on payment.

(l) a person who has no right to be elected a Pyithu Hluttaw

representative due to having committed a malpractice under relating to
the Election Law or acting an omission relating to disqualification for a
 64

Pyithu Hluttaw representative being convicted under the Election Law,

the period specified by the authority for him has not expired, before or
after the Constitution comes into operation.
65
 66

7.6.10 Qualifications of the Pyithu Hluttaw representatives who are

the Defence Services personnel

Section 122. The Defence Services personnel, nominated by the

Commander-in-Chief of the Defence Services as Pyithu Hluttaw
representatives who are the Defence Services personnel in accord with
the law, shall possess the prescribed qualifications for the Pyithu Hluttaw
representatives.

7.6.11 Convening the Pyithu Hluttaw Session

 67

Section 123. The first regular session of a term of the Pyithu Hluttaw
shall be held within 90 days after the commencement of the general
election.

Section 124. (a) The first regular session of the Pyithu Hluttaw shall be
held by the StatePeace and Development Council after the Constitution
comes intooperation.

(b) The first regular sessions for the forthcoming terms of the Pyithu
Hluttaw shall be held by the Speaker of the Pyithu Hluttaw who continues
to perform his duties in accord with the provisions of the Constitution.

Section 125. (a) The representatives of the Pyithu Hluttaw shall take an
affirmation of office as mentioned in Schedule Four before the
Chairperson of the Pyithu Hluttaw at the first regular session of the
Pyithu Hluttaw.

(b) The representatives of the Pyithu Hluttaw who have not taken an
affirmation of office shall do so before the Speaker of the Hluttaw at the
session of the Pyithu Hluttaw at which they first attend.
 68

Section 126. The Speaker of the Pyithu Hluttaw shall convene the regular
session at least once a year. The maximum interval between regular
sessions shall not exceed 12 months.

Section 127. The following functions shall be carried out at the Pyithu
Hluttaw session :

(a) recording the address delivered by the President;

(b) reading and recording the message sent by the President and other
messages permitted by the Speaker;

(c) submitting, discussing and resolving on a Bill;

(d) discussing and resolving on the matters to be undertaken by the Pyithu

Hluttaw in accord with the provisions of the Constitution;

(e) discussing, resolving and recording the reports submitted to the

PyithuHluttaw;

(f) submitting proposals, discussing and resolving;

(g) raising questions and replying;

 69

(h) performing matters approved by the Speaker of the Pyithu Hluttaw.

Section 128. (a) The first day session of the Pyithu Hluttaw shall be valid
if more than half of the total number of the Hluttaw representatives, who
have the right to attend the session, are present. The session, if invalid,
shall be adjourned.

(b) The sessions that are adjourned due to invalidity in accord with the
Sub-Section (a) as well as the valid sessions that are extended will be
valid if at least one-third of the Hluttaw representatives are present.
 70

Section 129. (a) A matter that shall be resolved in the Pyithu Hluttaw,
save as otherwise provided by the Constitution, shall be determined by a
majority of votes of the Pyithu Hluttaw representatives who are present
and voting.

(b) The Speaker of the Pyithu Hluttaw or the Deputy Speaker discharging
duties as the Speaker at the Pyithu Hluttaw shall not vote in the first
instance in the sessions of the Pyithu Hluttaw, but shall have and exercise
a casting vote in the matter of an equality of votes.
 71

Section 130. (a) If a Pyithu Hluttaw representative is, without permission

of the Pyithu Hluttaw, absent from a Pyithu Hluttaw session for a period
of at least 15 consecutive days, the Pyithu Hluttaw may declare his seat
vacant. In computing the said period of 15 days, no account shall be taken
of any period during which the session is adjourned.

(b) If the Speaker of the Pyidaungsu Hluttaw informed the Pyithu

Hluttaw that a Pyithu Hluttaw representative is absent from a Pyidaungsu
Hluttaw session for a period of 15 consecutive days without permission,
the Pyithu Hluttaw shall take action against the said representative in
accord with the prescribed procedures.

Section 131. Although there are vacant seats, the Pyithu Hluttaw shall
have the right to carry out its functions. Moreover, the resolutions and
 72

proceedings of the Pyithu Hluttaw shall not be annulled, notwithstanding

the acts of some person who was not entitled to do so sat or voted or took
part in the proceedings are later discovered.

Section 132. The proceedings and the records of the Pyithu Hluttaw shall
be published. However,the proceedings and the records prohibited by any
law or the resolution of the PyithuHluttaw shall not be published.

Section 133. (a) Subject to the provisions of the Constitution and the law
relating to the Pyithu Hluttaw, the Pyithu Hluttaw representatives shall
have freedom of speech and voting at the Pyithu Hluttaw and the Pyithu
Hluttaw Committee.

Concerning the discussing, submitting and performing at the Pyithu

Hluttaw and the Pyithu Hluttaw Committees, no action shall be taken
against a Pyithu Hluttaw representative except under its law.

(b) Subject to the provisions of the Constitution and the provisions of the
law relating to the Pyithu Hluttaw, members of the organizations or
 73

persons representing any of the Union level organizations formed under

the Constitution who are permitted or invited to attend the session of the
Pyithu Hluttaw or any committee of the Pyithu Hluttaw have the freedom
of speech at the Pyithu Hluttaw and the Pyithu Hluttaw Committees. No
action shall be taken against such members or persons for their
submissions and speeches in the Pyithu Hluttaw and the Pyithu Hluttaw
Committees by other law except under its law.

(c) If the persons mentioned in Sub-Sections (a) and (b) committed

assault in exercising the said privileges, they shall be liable to punishment
under the regulations, by-laws, procedures of the Pyithu Hluttaw or the
existing laws.
 74

Section 134. (a) If there is a need to arrest a Pyithu Hluttaw representative

attending the vsession or a person attending the Pyithu Hluttaw session
with the permission or invitation of the Speaker of the Pyithu Hluttaw,
the credible evidence shall be submitted to the Speaker of the Pyithu
Hluttaw. He shall not be arrested without the prior permission of the
Speaker of the Pyithu Hluttaw.

(b) If there is a need to arrest a member of a Committee or Commission

or the Body of the Pyithu Hluttaw attending session of any Committee or
session of Commission or the Body formed by the Pyithu Hluttaw, the
credible evidence shall be submitted to the Speaker of the Pyithu Hluttaw
through the Head of the Committee or Commission or Body
concerned.He shall not be arrested without the prior permission of the
Speaker of the Pyithu Hluttaw.

(c) If a Pyithu Hluttaw representative is arrested, the Pyithu Hluttaw or

the Pyithu Hluttaw Committee or the Commission or the Body formed by
the Pyithu Hluttaw is not in session, the credible evidence in support of
such arrest shall as soon as possible be submitted to the Speaker of the
Pyithu Hluttaw.
 75

Section 135. No action shall be instituted relating to the reports,

documents, and Hluttaw records published by the Pyithu Hluttaw or
under its authority.
 76

7.6.12 Submission of Bill

Section 136. Bills relating to other matters , except the matters prescribed
in the Constitution that the Bill shall be submitted and passed exclusively
by the Pyidaungsu Hluttaw stated in the Schedule One of Union
Legislative List, shall be initiated in the Pyithu Hluttaw in accord with the
prescribed procedures.

Section 137. (a) After issuing any rule, regulation or by-law in accord
with the law enacted by the Pyidaungsu Hluttaw, the Body concerned
shall distribute and submit the said rule, regulation or by-law to its
representatives at the nearest regular session of the Pyithu Hluttaw with
the permitted arrangement of the Speaker of the Hluttaw.

(b) If it is found that a rule, regulation or by-law is in conformity with the

provisions of relevant law, Hluttaw representatives may move to annul or
amend the rule, regulation or by-law to the Pyithu Hluttaw within 90 days
from the day that rule, regulation or by-law is submitted and distributed.

(c) If there is a disagreement between the Pyithu Hluttaw and the

Amyotha Hluttaw to annul or amend any rule, regulation or by-law, it
shall be submitted to the Pyidaungsu Hluttaw.
 77

Section 138. (a) If Bills submitted by any Union level organization

formed under theConstitution are sent in accord with the prescribed
procedures of thePyidaungsu Hluttaw, it shall be deemed that such Bills
are initiated in the Pyithu Hluttaw, and shall be discussed and resolved in
the Pyithu Hluttaw.

(b) Bills relating to other matters , except the matters prescribed in the
Constitution that the Bill shall be submitted and passed exclusively by the
Pyidaungsu Hluttaw stated in the Union Legislative List, shall be initiated
in the Pyithu Hluttaw in accord with the law. Such Bills shall be
discussed and resolved by the Pyithu Hluttaw under the prescribed
procedures.
 78

(c) The Bills passed by the Pyithu Hluttaw shall be sent to the Amyotha
Hluttaw to continue to discuss and resolve.

Section 139. (a) After receiving a Bill sent by the Amyotha Hluttaw, the
Pyithu Hluttaw may resolve to agree or disagree, or agree with
amendments in accord with the resolution of the Amyotha Hluttaw. The
Bill shall be sent back to the Amyotha Hluttaw together with the
resolution of the Pyithu Hluttaw.

(b) When the Pyithu Hluttaw recieves the Bill with amendments from the
Amyotha Hluttaw it shall, if it accepts the Bill with amendments of the
Amyotha Hluttaw, send to the Speaker of the Pyidaungsu Hluttaw.
 79

(c) If there is a disagreement between the Pyithu Hluttaw and the

Amyotha Hluttaw relating to the Bill sent to the Amyotha Hluttaw, the
Pyithu Hluttaw shall take the resolution of the Pyidaungsu Hluttaw.

Section 140. Members of the organization representing any Union level

Body formed under the Constitution are entitled :

(a) to explain, converse and discuss Bills or matters relating to their

Bodies when they are attending the Pyithu Hluttaw session with the
permission of the Speaker of the Pyithu Hluttaw;

(b) to explain, converse and discuss Bills or matters relating to their

Bodies when they are attending sessions of the Committees,
 80

Commissions and Bodies of the Pyithu Hluttaw with the permission of

the Head of the Committee, Commission or Body concerned.

7.7 Amyotha Hluttaw

7.7.1 Formation of the Amyotha Hluttaw

Section 141. The Amyotha Hluttaw shall be formed with a maximum of

224 Hluttaw representatives as follows :

(a) 168 Amyotha Hluttaw representatives elected in an equal number of

12 representatives from each Region or State inclusive of relevant Union
territories and including one representative from each Self-Administered
Division or Self-Administered Zone;

(b) 56 Amyotha Hluttaw representatives who are the Defence Services

personnel nominated by the Commander-in-Chief of the Defence
Services in accord with the law, four representatives from each Region or
State inclusive of relevant Union territories;
 81

(c) in forming the Amyotha Hluttaw as mentioned in Sub-Sections (a)

and (b), the relevant Union Territory means the Union Territories,
prescribed under the Constitution, or prescribed by law of the Pyidaungsu
Hluttaw, which are inclusive in State or Division, Region or State for the
purpose of electing the Amyotha Hluttaw representative.
 82

7.7.2 Election of Chairperson of the Amyotha Hluttaw

Section 142. Election of Chairperson of the Amyotha Hluttaw shall be

carried out subject to the provisions relating to the election of
Chairperson of the Pyithu Hluttaw under Section 110.

7.7.3 Election of the Speaker and the Deputy Speaker of the

Amyotha Hluttaw

Section 143. Election of the Speaker and the Deputy Speaker of the
Amyotha Hluttaw shall be carried out subject to the provisions relating to
the election of the Speaker and the Deputy Speaker of the Pyithu Hluttaw
under Section 111.

7.7.4 Duties of the Speaker of the Amyotha Hluttaw

Section 144. The duties of the Speaker of the Amyotha Hluttaw shall be
subject to the provisions relating to the duties of the Speaker of the Pyithu
Hluttaw under Section 112.
 83

7.7.5 Performance and termination of duties of the Speaker and the

Deputy Speaker of the Amyotha Hluttaw

Section 145. Performance and termination of duties of the Speaker and

the Deputy Speaker of the Amyotha Hluttaw shall be subject to the
provisions relating to the performance and termination of duties of the
Speaker and the Deputy Speaker of the Pyithu Hluttaw under Section
113.

Section 146. Duties, powers and rights of the Speaker and the Deputy
Speaker of the Amyotha Hluttaw shall be prescribed by law.

7.7.6 Formation of the Amyotha Hluttaw Committees, Commissions

and Bodies

Section 147.

(a) The Amyotha Hluttaw shall form Bill Committee, Public Accounts
Committee, Hluttaw Rights Committee, and Government‟s Guarantees,

Pledges and Undertakings Vetting Committee with the Amyotha Hluttaw

 84

representatives.

(b) When the occasion arises to have studies made and submitted on
defence and security matters or Military affairs, the Amyotha Hluttaw
shall form the Defence and Security Committee with the Amyotha
Hluttaw representatives who are the Defence Services personnel, for a
limited time. The Defence and Security Committee so formed may, if
necessary, be included suitable Amyotha Hluttaw representatives who are
not theDefence Services personnel in accord with the volume of work.

(c) If there arises a need to study and submit on other affairs, in addition
to legislature, executive, national races affairs, economics, finance, social
and foreign affairs, the Hluttaw Committees may be formed with the
Amyotha Hluttaw representatives for a limited time.

(d) The Amyotha Hluttaw shall determine the number of members,

duties, powers, rights, and term of the Amyotha Hluttaw Committees.
 85

Section 148. If there arises a certain matter to co-ordinate with the Pyithu
Hluttaw, the Amyotha Hluttaw may elect and assign its representatives
who will serve with the Joint Committee comprising an equal number of
representatives from the Amyotha Hluttaw and the Pyithu Hluttaw to
form that Committee. The term of the Joint Committee shall be until the
time they have submitted the report to the Hluttaw concerned.

Section 149. When both the Amyotha Hluttaw and the Pyithu Hluttaw
have certain matters to study, apart from matters to be performed by the
Committees as prescribed in Sub-Sections (a) and (b) of Section 147, the
Speakers of these Hluttaws may co-ordinate among themselves and form
a Joint Committee comprising an equal number of representatives from
the Amyotha Hluttaw and the Pyithu Hluttaw. The Amyotha Hluttaw may
elect and assign the Amyotha Hluttaw representatives included in that
 86

Committee. The term of the Joint Committee shall be until the time they
have submitted the report to the Hluttaw concerned.

Section 150. Formation of the Amyotha Hluttaw Commissions and

Bodies of the Amyotha Hluttaw shall be carried out subject to the
provisions relating to the formation of Commission and Bodies of the
Pyithu Hluttaw under Section 118.

7.7.7 Term of the Amyotha Hluttaw

Section 151. The term of the Amyotha Hluttaw is the same as the term of
the Pyithu Hluttaw. The term of the Amyotha Hluttaw expires on the day
of the expiry of the Pyithu Hluttaw.
 87

7.7.8 Qualifications of the Amyotha Hluttaw representatives

Section 152. The Amyotha Hluttaw representatives shall be:

(a) persons who have attained the age of 30 years;

(b) persons who have qualifications, with the exception of the age limit,
entitled to be elected as Pyithu Hluttaw representatives prescribed under
Section 120;

(c) persons whose qualifications does not breach the provisions under
Section 121 which disqualified a person from standing for election as the
Pyithu Hluttaw representatives.

7.7.9 Qualifications of the Amyotha Hluttaw representatives who are

the Defence Services personnel
 88

Section 153. The Defence Services personnel, nominated by the

Commander-in-Chief of the Defence Services as the Amyotha Hluttaw
representatives who are the Defence Services personnel in accord with
the law, shall possess the prescribed qualifications for the Amyotha
Hluttaw representatives.

7.7.10 Convening of the Amyotha Hluttaw Session

Section 154. (a) The commencement of the term of the Amyotha Hluttaw
is the day of the commencement of the term of the Pyithu Hluttaw.

(b) The first regular session of the Amyotha Hluttaw shall be held within
seven days after the commencement of the term of that Hluttaw.

Section 155. Convening the Amyotha Hluttaw session shall be carried out
subject to the provisions relating to convening of the Pyithu Hluttaw
sessions under Sections 124 to 135.
 89

7.7.11 Submission of Bill

Section 156. Bills relating to other matters, except the matters prescribed
in the Constitution that the Bill was submitted and passed exclusively by
the Pyidaungsu Hluttaw stated in Union Legislative List, shall be initiated
in the Amyotha Hluttaw in accord with the prescribed procedures.

Section 157. (a) After issuing a rule, regulation or by-law in accord with
the law enacted by the Pyidaungsu Hluttaw, the Body concerned shall
distribute and submit the said rule, regulation or by-law to its
representatives at the nearest regular session of the Amyotha Hluttaw
with the permitted arrangement of the Speaker of the Hluttaw.

(b) If it is found that a rule, regulation or by-law is in conformity with the

provisions of relevant law, Hluttaw representatives may move to annul or
amend the rule, regulation or by-law to the Amyotha Hluttaw within 90
days from the day that rule, regulation or by-law is submitted and
distributed.
 90

(c) If there is a disagreement between the Amyotha Hluttaw and the

Pyithu Hluttaw to annul or amend any rule, regulation or by-law, it shall
be submitted to the Pyidaungsu Hluttaw.

Section 158. (a) If Bills submitted by any Union level organization

formed under the Constitution are sent in accord with prescribed
procedures of the Pyidaungsu Hluttaw, it shall be deemed that such Bills
are initiated in the Amyotha Hluttaw, and shall be discussed and resolved
in the Amyotha Hluttaw.

(b) Bills relating to other matters, except the matters prescribed in the
Constitution that the Bill was submitted and passed exclusively by the
Pyidaungsu Hluttaw stated in the Union Legislative List shall be initiated
 91

in the Amyotha Hluttaw in accord with the law. Such Bills shall be
discussed and resolved by the Amyotha Hluttaw under the prescribed
procedures.

(c) The Bills passed by the Amyotha Hluttaw shall be sent to the Pyithu
Hluttaw to continue to discuss and to resolve.

Section 159. (a) After receiving a Bill sent by the Pyithu Hluttaw, the
Amyotha Hluttaw may resolve to agree or disagree, or agree with
amendments in accord with the resolution of the Pyithu Hluttaw. The Bill
shall be sent back to the Pyithu Hluttaw together with the resolution of
the Amyotha Hluttaw.
 92

(b) When the Amyotha Hluttaw recieves the Bill with amendments from
the Pyithu Hluttaw it shall, if it accepts the Bill with amendments of the
Pyithu Hluttaw, send to the Speaker of the Pyidaungsu Hluttaw.

(c) If there is a disagreement between the Amyotha Hluttaw and the

Pyithu Hluttaw relating to the Bill sent to the Pyithu Hluttaw, the
Amyotha Hluttaw shall obtain the resolution of the Pyidaungsu Hluttaw.

Section 160. Members representing any Union level Body formed under
the Constitution are entitled :

(a) to explain, converse and discuss Bills or matters relating to their

Bodies when they are attending the Amyotha Hluttaw session with the
permission of the Speaker of the Amyotha Hluttaw;
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(b) to explain, converse and discuss Bills or matters relating to their

Bodies when they are attending sessions of the Committees,
Commissions and Bodies of the Amyotha Hluttaw with the permission of
the Head of the Committee, Commission or Body concerned.

7.8 Region Hluttaw or State Hluttaw

7.8.1 Formation of the Region Hluttaw or the State Hluttaw

161. The Region or State Hluttaw shall be formed with the following
persons:

(a) representatives of the Region or State Hluttaw, two of each are elected
from each township in the Regions or the States;

(b) representatives of the Region Hluttaw, each is elected from each

national race determined by the authorities concerned as having a
populationwhich constitutes 0.1 percent and above of the population of
the Union, of the remaining national races other than those who have
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already obtained the respective Region or a Self-Administered Area in

that Region;

(c) representatives of the State Hluttaw, each is elected from each

national race determined by the authorities concerned as having a
population which constitutes 0.1 percent and above of the population of
the Union, of the remaining national races other than those who have
already obtained respective State or a Self-Administered Area in that
State;

(d) representatives of the Region or State Hluttaw who are the Defence
Services personnel nominated by the Commander-in-Chief of the
Defence Services in accord with the law for an equal number of one-third
of the total number of Hluttaw representatives elected under Sub-Sections
(a) and (b) or (a) and (c).
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7.8.2 Election of the Chairperson of the Region or State Hluttaw

Section 162. Election of Chairperson of the Region Hluttaw or the State

Hluttaw shall be carried out subject to the provisions relating to the
election of Chairperson of the Pyithu Hluttaw under Section 110.

7.8.3 Election of the Speaker and the Deputy Speaker of the Region
Hluttaw or the State Hluttaw
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Section 163. Election of the Speaker and the Deputy Speaker of the
Region Hluttaw or the State Hluttaw shall be carried out subject to the
provisions relating to the election of the Speaker and the Deputy Speaker
of the Pyithu Hluttaw under Section 111.

7.8.4 Duties of the Speaker of the Region Hluttaw or the State

Hluttaw

Section 164. The Speaker of the Region Hluttaw or the State Hluttaw
shall :

(a) supervise the Region Hluttaw or the State Hluttaw sessions;

(b) invite the President, if he is informed of the President‟s desire to

address the Region Hluttaw or the State Hluttaw;

(c) make necessary arrangement if the Chief Minister of the Region or

State informs his desire to address;

(d) have the right to invite members of the organization or persons

representing any Region or State level organization formed under the
Constitution to attend the session of the Region Hluttaw or the State
Hluttaw and give clarifications on matters relating to ongoing
discussions, if necessary;

(e) perform other duties and powers prescribed by the Constitution or any
law.
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7.8.5 Performance and termination of duties of the Speaker and the

Deputy Speaker of the Region Hluttaw or the State Hluttaw

Section 165. Performance and termination of duties of the Speaker and

the Deputy Speaker of the Region Hluttaw or the State Hluttaw shall be
subject to the provisions relating to the performance and termination of
duties of the Speaker and the Deputy Speaker of the Pyithu Hluttaw in
Section 113.
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Section 166. Duties, powers and rights of the Speaker and the Deputy
Speaker of the Region Hluttaw or the State Hluttaw shall be prescribed by
law.

7.8.6 Formation of the Region Hluttaw or the State Hluttaw

Committee and Bodies

Section 167. (a) The Region Hluttaw or the State Hluttaw may, if
necessary, form Committee and Bodies with the Region or State Hluttaw
representatives concerned to study and submit legislation, national races
affairs vested by the Constitution.

(b) The Region Hluttaw or the State Hluttaw may form above
Committees and Bodies including suitable citizens.

(c) The Region Hluttaw or the State Hluttaw shall prescribe the number
of members, duties, powers, rights and terms of the Committees or
Bodies in forming those Committees and Bodies.
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7.8.7 Term of the Region Hluttaw or the State Hluttaw

Section 168. The term of the Region or State Hluttaw is the same as the
term of the PyithuHluttaw. The term of the Region or State Hluttaw
expires on the day of the expiry of the Pyithu Hluttaw.

7.8.8 Qualifications of the Region Hluttaw or the State Hluttaw

representatives

Section 169. The Region or State Hluttaw representatives shall :

(a) have qualifications entitled to be elected as the Pyithu Hluttaw

representatives under Section 120;

(b) shall be subject to the provisions of Section 121 which provide the
disqualifications to be elected as the Pyithu Hluttaw representatives.
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7.8.9 Qualifications of the Region or State Hluttaw representatives

who are Defence Services personnel

Section 170. The Defence Services personnel, nominated by the

Commander-in-Chief of the Defence Services as the Region or State
Hluttaw representatives who are the Defence Services personnel in
accord with the law, shall possess the prescribed qualifications for the
Region or State Hluttaw representatives.

7.8.10 Convening the Region or State Hluttaw Sessions

Section 171. (a) The commencement of the term of the Region or State
Hluttaw is the day of the commencement of the term of the Pyithu
Hluttaw.
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(b) The first regular session of the Region or State Hluttaw shall be held
within 15 days after the commencement of the term of the Hluttaw.

Section 172.

(a) The first regular session of the Region or State Hluttaw shall be
convened by the State Peace and Development Council after the
Constitution comes into operation.

(b) The first regular sessions for the forthcoming terms of the Region or
State Hluttaw shall be held by the Speaker of the Region or State Hluttaw
who continues to perform his duties in accord with the provisions of the
Constitution.

Section 173. (a) The representatives of the Region or State Hluttaw shall
take an affirmation of office as mentioned in Schedule Four before the
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Chairperson of the Region or State Hluttaw at the first regular session of

the Region or State Hluttaw.

(b) The representatives of the Region or State Hluttaw who have not
taken an affirmation of office shall do so before the Speaker of the
Hluttaw at the session of the Region or State Hluttaw at which they first
attend.

Section 174. The Speaker of the Region or State Hluttaw shall convene
the regular session at least once a year. The maximum interval between
regular sessions shall not exceed 12 months.

Section 175. The following functions shall be carried out at the Region or
State Hluttaw session:

(a) recording the addresses delivered by the President;

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(b) reading and recording the message sent by President and other
messages permitted by the Speaker;

(c) recording the address delivered by the Chief Minister of the Region or
the State;

(d) submitting, discussing and resolving on a Bill;

(e) discussing and resolving on the matters to be undertaken by the

Region or State Hluttaw in accord with the provisions of the Constitution;

(f) discussing, resolving and recording the reports submitted to the

Region or State Hluttaw;

(g) submitting proposal, discussing and resolving;

(h) raising questions and replying;

(i) undertaking matters approved by the Speaker of the Region or State

Hluttaw.
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Section 176. Matters that require resolution, agreement and approval of

the Region or State Hluttaw shall be implemented as follows :

(a) if the Region or State Hluttaw is in session, the matter shall be

resolved at that session;

(b) if the Region or State Hluttaw is not in session, the matter shall be
resolved at the nearest Region or State Hluttaw session;

(c) a special session or an emergency session shall be convened to discuss

and to resolve matters which need urgent action in the interest of the
public.
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Section 177. The Speaker of the Region or State Hluttaw may convene a
special session or an emergency session of the Region or State Hluttaw, if
necessary.

Section 178. The Speaker of the Region or State Hluttaw shall convene a
special or an emergency session of the Region or State Hluttaw as soon as
possible when the Chief Minister of the Region or State informs him to
do so.

Section 179. The Speaker of the Region or State Hluttaw shall convene a
special session as soon as possible, if at least one-fourth of the total
number of the Region or State Hluttaw representatives so require.
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Section 180. (a) The first day session of the Region or State Hluttaw shall
be valid if more than half of the total number of Hluttaw representatives,
who have the right to attend the Region or State Hluttaw session, are
present. The session, if invalid, shall be adjourned.

(b) The sessions that are adjourned due to invalidity in accord with the
Sub-Section (a) as well as the valid session that are extended will be valid
if at least one-third of the Hluttaw representatives are present.

Section 181. (a) A matter that shall be resolved in the Region or State
Hluttaw, save as otherwise provided by the Constitution, shall be
determined by a majority of votes of the Region or State Hluttaw
representatives who are present and voting.

(b) The Speaker of the Region or State Hluttaw discharging duties as the
Speaker at the Region or State Hluttaw shall not voted in the first instance
 107

in the sessions of the Region or State Hluttaw, but shall have and exercise
a casting vote in the matter of an equality of votes.

Section 182. If the Region or State Hluttaw representative is, without

permission of the Region or State Hluttaw, absent from a Region or a
State Hluttaw session for a period of at least 15 consecutive days, the
Region or State Hluttaw may declare his seat vacant. In computing the
said period of 15 days, it shall not be counted of any period during which
the session is adjourned.
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Section 183. Although there are vacant seats, the Region or State Hluttaw
shall have the right to carry out its functions. Moreover, the resolutions
and proceedings of the Region or State Hluttaw shall not be annulled,
notwithstanding the acts of some person who was not entitled to do so sat
or voted or took part in the proceedings are later discovered.

Section 184. The proceedings and the records of the Region or State
Hluttaw shall be published. However, the proceedings and the records
prohibited by any law or the resolution of the Region or State Hluttaw
shall not be published.
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Section 185. (a) Subject to the provisions of the Constitution and the
provisions of the law relating to the Region or State Hluttaw, the Region
or State Hluttaw representatives shall have freedom of speech and voting
at the Region or State Hluttaw and the Committee and Body formed by
the Region or State Hluttaw. Concerning the discussing, submitting and
performing at the Region or State Hluttaw and the Region or State
Hluttaw Committees and Bodies, no action shall be taken against a
Region or a State Hluttaw representative except under its laws.

(b) Subject to the provisions of the Constitution and the provisions of the
law relating to the Region or State Hluttaw, members of the organizations
or persons representing any of the Region or State level organizations
formed under the Constitution who are permitted or invited to attend the
session of the Region or State Hluttaw or any Committee and Body of the
Region or State Hluttaw have the freedom of speech at the Region or
State Hluttaw or the Region or State Hluttaw Committees and Bodies. No
action shallbe taken against such members or persons for their
submissions and speeches in the Region or State Hluttaw by other law
except under its laws.

(c) If the persons mentioned in Sub-Sections (a) and (b) committed

assault in exercising the said privileges, they shall be liable to punishment
under the regulations, by-laws, procedures of the Region or State Hluttaw
or the existing laws.
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 111

Section 186.

(a) If there is a need to arrest a Region or a State Hluttaw representative

attending the Region or State Hluttaw session or a person attending the
Region or State Hluttaw session with the permission or invitation of the
Speaker of the Hluttaw, the credible evidence shall be submitted to the
Speaker of the Region or State Hluttaw. He shall not be arrested without
the prior permission of the Speaker of the Region or State Hluttaw.

(b) If there is a need to arrest a member of a Committee or a Body of the

Region or State Hluttaw attending session of any Committee or Body
formed by the Region or State Hluttaw, the credible evidence shall be
submitted to the Speaker of the Region or State Hluttaw through the Head
of the Committee or Body concerned. He shall not be arrested without the
prior permission of the Speaker of the Hluttaw.

(c) If a representative of the Region or State Hluttaw is arrested, session

of the Region or State Hluttaw or session of any Committee or any Body
formed by the Hluttaw is not in session, the credible evidence in
supportof such arrest shall as soon as possible be submitted to the
Speaker of the Region or State Hluttaw.
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Section 187. No action shall be instituted relating to the reports,

documents and Hluttaw records published by the Region or State Hluttaw
or under its authority.

7.8.11 Legislation

Section 188. The Region or State Hluttaw shall have the right to enact
laws for the entire or anypart of the Region or State related to matters
prescribed in Schedule Two of the Region orState Hluttaw Legislative
List.
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Section 189. (a) When the Region or State Hluttaw enacts a law, it may :

(i) authorize to issue rules, regulations and by-laws concerning that law to
any Region or State level organization formed under the Constitution;

(ii) authorize to issue notifications, orders, directives and procedures to

the respective organization or authority.

(b) The rules, regulations, by-laws, notifications, orders, directives and

procedures issued under the power conferred by any law shall be in
conformity with the provisions of the Constitution and the relevant law.

(c) After issuing any rule, regulation or by-law in accord with the law
enacted by the Region or State Hluttaw, the Body concerned shall
distribute and submit the said rule, regulation or by-law to its
representatives at the nearest regular session of the Region or State
Hluttaw under the permitted arrangement of the Speaker of the Hluttaw.

(d) If it is found that a rule, regulation or by-law is in conformity with the

provisions of relevant law, Hluttaw representatives may move to annul or
amend the rule, regulation or by-law to the Region or State Hluttaw
within 90 days from the day that rule, regulation or by-law is submitted
and distributed.

(e) If the Region or State Hluttaw passes a resolution to annul or amend

any rule, regulation or by-law, the resolution shall be without prejudice to
the validity of any action previously taken under the relevant rules,
regulations or by-laws.
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 115

7.8.12 Submission of Bill

Section 190. (a) The Region or State level organizations formed under the
Constitution shall have the right to submit the Bills relating to matters
they administered among the matters included in the Schedule Two of the
Region or State Legislative List to the Region or State Hluttaw in accord
with the prescribed procedures.

(b) Bills relating to regional plans, annual budgets and taxation of the
Regionor State, which are to be submitted exclusively by the Region or
State government, shall be submitted to the Region or State Hluttaw in
accord with the prescribed procedures.
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Section 191. Representatives of the Region or State Hluttaw shall submit

the Bills relating to other matters, except the matters prescribed in the
Constitution that the Bill was submitted exclusively by the Region or
State Hluttaw stated in the Schedule Two of the Region or State
Legislative List, to the Region or State Hluttaw in accord with the
prescribed procedures.

Section 192.

(a) Members, who are representatives of the Region or State Hluttaw

among members representing any Region or State level organization
formed under the Constitution, are entitled to explain, converse, discuss
and vote Bills or matters relating to their organizations at the Hluttaw
sessions.

(b) Members, who are not representatives of the Region or State Hluttaw
among members representing any Region or State level organization
formed under the Constitution, when they are attending Hluttaw session
with the permission of the Speaker of the Hluttaw, are entitled to explain,
converse and discuss Bills or matters relating to their organizations.
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7.8.13 Promulgation of Law

Section 195. (a) The Chief Minister of the Region or State shall :

(i) sign and promulgate the Bills approved by the Region or State Hluttaw
as law within seven days after the day of receipt in accord with the
prescribed procedures;

(ii) sign and promulgate the Bills approved by the Leading Body of Self-
Administered Division or Self-Administered Zone as law within 14 days
after the day of receipt.

(b) If the Chief Minister of the Region or State does not sign and
promulgate the Bill as law within the prescribed period, on the day after
the completion of that period, the Bill shall become a law as if he had
signed it.
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(c) The laws signed by the Chief Minister of the Region or State and laws
which deemed to have been signed by him, shall be promulgated by the
publication in the official gazette. The Law shall come into operation on
the day of such promulgation unless the contrary intention is expressed.

7.8.14 Self-Administered Division and Self-Administered Zone

Leading Bodies
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Section 196. The legislative power relating to the matters listed in the
Schedule Three for respective Divisions or Zones are allotted to the Self-
Administered Division or the Self-Administered Zone Leading Bodies.

7.8.15 Duties, powers and rights of the representatives of the

Pyithu Hluttaw, the Amyotha Hluttaw and the Region or State
Hluttaw

Section 197. Duties, powers and rights of the representatives of the

Pyithu Hluttaw, the Amyotha Hluttaw and the Region or State Hluttaw
shall be prescribed by law.

7.8.16 Effect of Laws

Section 198. The effect of laws enacted by different levels of the Hluttaw
and the Leading Bodies of the Self-Administered Area is as follows :

(a) if any provision of the law enacted by the Pyidaungsu Hluttaw, the
Region Hluttaw, the State Hluttaw, the Leading Bodies of the Self-
Administered Division or the Self-Administered Zone or, any existing
 120

law is inconsistent with any provision of the Constitution, the

Constitution shall prevail;

(b) if any provision of the law enacted by the Region Hluttaw or the State
Hluttaw is inconsistent with any provision of the law enacted by the
Pyidaungsu Hluttaw, the law enacted by the Pyidaungsu Hluttaw shall
prevail;

(c) if any provision of the law enacted by the Leading Body of the Self-
Administered Division or the Self-Administered Zone is inconsistent with
any provision of the law enacted by the Pyidaungsu Hluttaw, the law
enacted by the Pyidaungsu Hluttaw shall prevail;

(d) if any provision of the law enacted by the Leading Body of the Self-
Administered Division or the Self-Administered Zone is inconsistent with
any provision of the law enacted by the Region Hluttaw or the State
Hluttaw concerned, the law enacted by the Region Hluttaw or the State
Hluttaw concerned shall prevail.
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7.9 Executive

7.9.1 The Union Government

Section 199.

(a) The Executive Head of the Union is the President.

(b) (i) The executive power of the Union is distributed among the
Union, Regions and States.

(ii) Self-Administered power is distributed among Self-Administered

Areas as prescribed by the Constitution.
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7.9.2 Formation of the Union Government

Section 200. The Union Government shall comprise the following

persons:

(a) The President;

(b) Vice-Presidents;

(c) Ministers of the Union;

(d) The Attorney General of the Union.

7.9.3 Formation of the National Defence and Security Council

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Section 201. The National Defence and Security Council led by the
President, to enable it to discharge the duties assigned by the Constitution
or any law, shall be formed with the following persons :

(a) The President;

(b) Vice-President;

(c) Vice-President;

(d) Speaker of the Pyithu Hluttaw;

(e) Speaker of the Amyotha Hluttaw;

(f) Commander-in-Chief of the Defence Services;

(g) Deputy Commander-in-Chief of the Defence Services;

(h) Minister for Defence;

(i) Minister for Foreign Affairs;

(j) Minister for Home Affairs;

(k) Minister for Border Affairs.

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7.9.4 Powers and Functions of the President

Section 202. The President, with the approval of the Pyidaungsu Hluttaw,
may:

(a) designate the Ministries of the Union Government as necessary, and

may make changes and additions to the ministries;

(b) designate the number of the Union Ministers as necessary, and may
increase or decrease the number.

Section 203. The President shall be responsible to the Pyidaungsu

Hluttaw. The Vice-Presidents shall be responsible to the President and
also to the Pyidaungsu Hluttaw through the President.
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Section 204. The President has :

(a) the power to grant a pardon;

(b) the power to grant amnesty in accord with the recommendation of the
National Defence and Security Council.

Section 205. The President may, in accord with the law, have:

(a) the power to confer honorary titles and awards; and

(b) the power to revoke conferred honorary titles and awards.

Section 206. The President may establish or sever diplomatic relations

with foreign countries with the approval of the Pyidaungsu Hluttaw.
However, in situation which requires immediate action, the President may
sever diplomatic relations with any foreign country aftercoordination with
the National Defence and Security Council. The President shall submit
that action to the Pyidaungsu Hluttaw for its approval.
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Section 207. The President, in accord with the law, may:

(a) appoint and recall the diplomats of its country;

(b) agree on the appointment of foreign diplomats and send information

on the recall of diplomats;

(c) accept the letters of accreditation presented by foreign diplomats.

Section 208. The President, in accord with the law, may appoint and
dismiss Heads of the Bodies of Civil Services.

Section 209. The President, in accord with the law:

 127

(a) shall enter into, ratify or annul international, regional or bilateral

treaties which require the approval of the Pyidaungsu Hluttaw, or revoke
from such treaties;

(b) may enter into, ratify or annul international, regional or bilateral

treaties which do not require the approval of the Pyidaungsu Hluttaw, or
revoke from such treaties.

Section 210. The President shall have the right to occasionally deliver an
address or send a message to the session of the Pyidaungsu Hluttaw or the
Amyotha Hluttaw, or to the entire country relating to the policies and
general situation of the Union.
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Section 211. The President may intimate the Speaker of the Pyidaungsu
Hluttaw to summon an emergency or special session of the Pyidaungsu
Hluttaw, if necessary.

Section 212. (a) Except Union budget matters, the President shall have
the right to promulgate an ordinance for administrative matters that need
immediate action during the interval between sessions of the Pyidaungsu
Hluttaw.

(b) If the President has not revoked the ordinance promulgated under
Sub-Section (a), he shall submit the ordinance for approval to the nearest
session of the Pyidaungsu Hluttaw within 60 days after the promulgation
of theordinance. If the Pyidaungsu Hluttaw is not in session, the President
shall, within 60 days after the promulgation of such ordinance, summon a
special session of the Pyidaungsu Hluttaw for approval.

(c) The ordinance shall cease to have effect from the day on which it is
not approved by the Pyidaungsu Hluttaw.

(d) The ordinance promulgated by the President, with the approval of the

Pyidaungsu Hluttaw, will continue to be in operation for the required

period.

(e) Notwithstanding that an ordinance has been already revoked within 60

days after its promulgation, it shall be submitted to the nearest session of
the Pyidaungsu Hluttaw.
 129

(f) If an ordinance contains the provision to which the Pyidaungsu

Hluttaw has no right to make a resolution in accord with the Constitution,
the said provision shall cease to have effect.
 130

Section 213. The President :

(a) shall have the right to take appropriate military action, in co-
ordination with the National Defence and Security Council formed in
accord with the Constitution, in case of aggression against the Union;

(b) shall submit the action so taken to the Pyidaungsu Hluttaw for
approval if it is in session, or to summon an emergency session to submit
that matter for approval if the Pyidaungsu Hluttaw is not in session;

(c) may declare war or make peace only with the assent of the
Pyidaungsu Hluttaw.

Section 214. The President shall take action in accord with the provisions
of the Constitution and sign the laws passed and enacted by the
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Pyidaungsu Hluttaw. The said signed laws shall be promulgated in the

Official Gazette.

Section 215. The President shall not be answerable to either any Hluttaw
or to any Court forthe exercise of the powers and functions of his office
or for any act done or purported tobe done by him in the exercise of these
powers and functions in accord with the Constitution or any law.
However, the exemption does not deal with the provisions relating to
impeachment of the President under the Constitution.

7.9.5 The Executive Power of the Union Government

Section 216. Subject to the provisions of the Constitution, the executive

power of the Union extends to administrative matters over which the
Pyidaungsu Hluttaw has power to make laws.
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Section 217. Subject to the provisions of the Constitution, the executive

power of the Unionshall be vested in the President. Nothing in this
Section shall prevent the Pyidaungsu Hluttaw from conferring functions
and powers upon any authoritative body or person, or be deemed to
transfer to the President functions and powers vested in any
administrative body or person concerned under the existing laws.

Section 218. (a) All executive actions of the Union Government shall be
taken as action in the name of the President.

(b) The President shall, except in matters conferred on him by the

Constitution to perform in his own discretion, have the right to issue
necessary rules on matters to be performed by the Union Government, on
allocation of the said matters to the Ministries of the Union Government,
and on allocation to the person responsible to act under any law.
 133

(c) Orders and instruments executed in the name of the President shall be
in accord with the manners of the prescribed rules issued by the
President. Moreover, the validity of such order or instruments shall not be
called in question on the ground that it was not done by the President.

(d) The President may, without prejudice to the generality of the

provisions of Sub-Sections (a), (b) and (c) of this Section, allocate his
duties regionally or according to the functions of the Government
department.
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Section 219. The Union Government preserves stability of the Union,

community peace and tranquility and prevalence of law and order.

Section 220. The Union Government shall promulgate its policies in

accord with the provisions of the Constitution. The necessary projects
have to be drawn in accord with the said policies and shall be
implemented with the approval of the Pyidaungsu Hluttaw.

Section 221. The Union Government shall draft the Union Budget Bill
based on the annual Union budget, after coordinating with the Financial
Commission, and submit it for approval to the Pyidaungsu Hluttaw in
accord with the provisions of the Constitution.

Section 222. The Union Government shall, if the Pyidaungsu Hluttaw is

unable to promulgate the Union Budget Bill before the end of the Budget
Year, expend within the framework of the general expenditure included
in the last-enacted Budget Law of the Pyidaungsu Hluttaw.
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Section 223. The Union Government may, relating to the matters which
may be enacted into law by the Pyidaungsu Hluttaw in accord with the
provisions of the Constitution, submit the Bill to the Pyidaungsu Hluttaw.

Section 224. The Ministries of the Union Government shall, in carrying

out the functions of their subordinate governmental departments and
organizations, manage, guide, supervise and inspect in accord with the
provisions of the Constitution and the existing laws.

Section 225. In carrying out functions of the Region Government, the

State Government, and the Leading Bodies of Self-Administered Division
and Self-Administered Zone, the Union Government co-operates and co-
ordinates with them to be effective and successful.
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Section 226. The Union Government, with the exception of

Constitutional disputes and thedisputes over territorial re-delineation
shall:

(a) mediate and if necessary, decide, on disputes over administration

between the Region and State, among Regions, among States, between
Region or State and Self-Administered Area, among Self-Administered
Areas; and

(b) mediate and if necessary, decide, on disputes over administration

between the Region or State and Union territory, between Self-
Administered Area and Union territory.
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Section 227.

The Union Government, in accord with the law:

(a) may form Civil Services organizations relating to the Union as

necessary.

In so forming, the functions and powers shall be prescribed;

(b) may appoint the required civil service personnel.

Section 228. The Union Government shall:

(a) implement the administrative resolutions passed occasionally by the

Pyidaungsu Hluttaw and report back the actions which have been taken to
the Pyidaungsu Hluttaw;

(b) submit occasionally matters relating to the general situation of the

Union to the Pyidaungsu Hluttaw.
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7.9.6 Formation of the Financial Commission

Section 229. (a) The Financial Commission shall be formed with the
following persons:

(i) The President Chairperson

(ii) Vice-Presidents Vice-Chairpersons

(iii) The Attorney-General of the Union Member

(iv) The Auditor-General of the Union Member

(v) Chief Ministers of the Regions and States Members

(vi) The Nay Pyi Taw Council Chairperson Member

(vii) The Minister of Finance of the Union Secretary

(b) (i) In forming the Financial Commission, the President may appoint a
suitable person as a temporary member if there is vacancy for any reason.

(ii) The President shall promulgate the formation of the Financial

Commission. Moreover, necessary orders or directives, so forth, for the
Financial Commission may be promulgated either by the President or the
person assigned by him.
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7.9.7 Duties and Functions of the Financial Commission

Section 230. (a) The budgets of the Union Ministries and Union level
organizations are to be vetted by a Vice-President assigned by the
President, and the estimated budgets of the Union level organizations
including the Union Ministries are to be submitted to the Financial
Commission.

(b) The budgets of the Region or State are to be vetted by the other Vice-
President assigned by the President, and the estimated budgets of the
Region or State are to be submitted to the Financial Commission.

(c) The Financial Commission shall:

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(i) submit to the Pyidaungsu Hluttaw with recommendation for the Union
Budget which includes the expenditure of the Union territory, a
supplementary finance as suitable to the Regions or States from the
Union Fund, giving grants as a special matter and permitting loans;

(ii) to advise financial matters that should be undertaken;

(iii) carry out the duties assigned by the Pyidaungsu Hluttaw through the
promulgation of law for the emergence of a substantial financial system.

(d) The Financial Commission shall submit with recommendation to the

President, the Bill of Union Budget, which includes Union Budget, the
distribution of suitable funds from Union Fund accounts to Regions or
States, the provisions or funds as a special case and disbursing of
necessary loans for submission them to the Pyidaungsu Hluttaw.

(e) The Financial Commission may, if necessary, seek advice from

financial experts.
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7.9.8 The Union Ministers and the Deputy Ministers

Appointment of the Union Ministers

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Section 232. (a) The President shall appoint the Union Ministers who
possess the following qualifications :

(i) person who has attained the age of 40 years;

(ii) person who has qualifications, with the exception of age limit, entitled
to be elected as Pyithu Hluttaw representatives prescribed in Section 120;

(iii) person whose qualifications does not breach the provisions under
Section 121 which disqualify the person from standing for electionas the
Pyithu Hluttaw representative;

(iv) person loyal to the Union and its citizens.

(b) In order to appoint the Union Ministers, the President shall:

(i) select suitable persons who have qualifications prescribed in Sub-

Section (a) from among the Hluttaw representatives or persons who are
not Hluttaw representatives;
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(ii) obtain a list of suitable Defence Services personnel nominated by the

Commander-in-Chief of the Defence Services for Ministries of Defence,
Home Affairs and Border Affairs;

(iii) co-ordinate with the Commander-in-Chief of the Defence Services if

he desires to appoint the Defence Services personnel as Union Ministers
for other Ministries apart from Ministries of Defence, Home Affairs and
Border Affairs.

(c) The President shall compile the list of persons selected by him and the
list of the Defence Services personnel nominated by the Commander-in-
Chief of the Defence Services and submit them to the Pyidaungsu
Hluttaw for its approval.
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(d) The appointment of a person as a Union Minister nominated by the

President shall not be refused by the Pyidaungsu Hluttaw unless it can
clearly be proved that the person concerned does not meet the
qualifications of the Union Minister.

(e) The President has the right to submit again the list with a new name
replacing the one who has not been approved by the Pyidaungsu Hluttaw
for the appointment of a Union Minister.

(f) The President shall appoint the persons who have been approved by
the Pyidaungsu Hluttaw as Union Ministers. In doing so, the President
shall designate Ministry or Ministries for each Union Minister to take
responsibility.
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(g) The President shall intimate the Pyidaungsu Hluttaw whenever he

appoints Union Ministers.

(h) The Union Ministers shall be responsible to the President.

(i) If the Union Minister is a representative of a Hluttaw, it shall be

deemed that he has resigned from the day he is appointed as a Union
Minister.

(j) (i) If the Union Minister is a Civil Services personnel, it shall be

deemed that he has retired according to the existing civil service rules and
regulations from the day he is appointed as a Union Minister.

(ii) The Defence Services personnel who are appointed as UnionMinisters

for the Ministries of Defence, Home Affairs and Border Affairs are not
required to retire or resign from the Defence Services.
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(k) If the Union Minister is a member of any political party, he shall not
take part in its party activities during the term of office from the day he is
appointed as a Union Minister.

7.9.9 Impeachment of the Union Minister

Section 233. (a) Any Union Minister may be impeached on any of the
following reasons :

(i) high treason;

(ii) breach of any provision of the Constitution;

(iii) misconduct;

(iv) disqualification of qualification of the Union Minister prescribed in

the Constitution;

(v) inefficient discharge of duties assigned by law.

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(b) If there is a need to impeach any Union Minister, the same procedure
for the impeachment of the President or Vice-President under Section 71
shall be applied.

(c) The President shall remove the impeached Union Minister from office

when the Hluttaw that had made an investigation had resolved and
submitted to the President that the charge has been substantiated and the
Union Minister is unfit to continue in office.

(d) If the Hluttaw concerned resolves that the charge has failed, the
Speaker of the Hluttaw shall report the resolution to the President.

7.9.10 Appointment of Deputy Ministers

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Section 234. (a) The President shall appoint the persons, from among
Hluttaw representatives or from those who are not Hluttaw
representatives, possessing the following qualifications, as Deputy
Ministers to assist the Union Ministers:

(i) persons who have attained the age of 35 years;

(ii) persons who have qualifications, with the exception of the age limit,
prescribed in Section 120 for Pyithu Hluttaw representatives;

(iii) persons whose qualification does not breach the provisions under
Section 121 which disqualify a person from standing for election as
Pyithu Hluttaw representatives;

(iv) persons loyal to the Union and its citizens.

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(b) The President shall, to appoint the Deputy Ministers for Ministries of
Defence, Home Affairs and Border Affairs, have the list of suitable
Defence Services personnel nominated by the Commander-in-Chief of
the Defence Services.

(c) The President shall co-ordiante with the Commander-in-Chief of the

Defence Services if he desires to appoint the Defence Services personnel
as the Deputy Ministers of other Ministries apart from the Ministries of
Defence, Home Affairs and Border Affairs.

(d) The President shall designate Ministries for each Deputy Minister to
take responsibility.

(e) The Deputy Ministers shall be responsible to the relevant Union

Minister, and to the President through the relevant Union Minister.
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(f) If the Deputy Minister is a representative of a Hluttaw or a Civil

Services personnel or a Defence Services personnel, or a member of a
political party, the provisions of Sub-Sections (i), (j) and (k) of Section
232 shall be applied.

7.9.11 Term of office, resignation, termination of duties and filling

vacancy of the Union Ministers and Deputy Ministers

Section 235. (a) The term of the Union Minister and Deputy Minister is
the same as that of the President.

(b) The Union Minister or Deputy Minister may resign from office on his
own volition due to a certain reason before the expiry of his term of
office, aftersubmitting his written resignation to the President.

(c) The President :

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(i) may direct any Union Minister or Deputy Minister who cannot
discharge his duties efficiently to resign. If he fails to comply, he shall be
terminated from his duties;

(ii) shall co-ordinate with the Commander-in-Chief of the Defence

Services if it relates to a Defence Services personnel who is a Minister or
Deputy Minister to resign or remove from office.

(d) If the office of the Union Minister or Deputy Minister becomes vacant
due to resignation, removal from office, death or any other reason, the
President shall have the right to appoint and assign duties to a new Union
Minister or Deputy Minister in accord with the provisions of the
Constitution relating to the appointment of the Union Minister or Deputy
Minister. The term of office of the newly appointed Union Minister or
Deputy Minister shall be the same as the remaining term of the President.
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(e) (i) When the President before the expiry of his term in office, has
appointed the Union Ministers or Deputy Ministers, and the President‟s
office is vacant due to resignation or death or any other reason, the Union
Ministers and the Deputy Ministers shall continue to perform their duties
until the new elected President has appointed and assigned duties to the
new Union Ministers or Deputy Ministers.

(ii) The term of the newly appointed Union Ministers and Deputy
Ministers shall be up to the expiry of the remaining term of the new
President.

(f) Duties, powers and rights of the Union Minister and Deputy Ministers
shall be prescribed by law.
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7.9.12 The Attorney General of the Union and the Deputy Attorney
General

Section 236. The Attorney General of the Union shall be called the
Attorney General of the Union.

The appointment of the Attorney General of the Union

Section 237. (a) The President, with the approval of the Pyidaungsu
Hluttaw, shall appoint a person, from among Hluttaw representatives or
persons who are not Hluttaw representatives having the following
qualifications as the Attorney-General of the Union to obtain legal advice
and assign duties on legal matters:

(i) person who has attained the age of 45 years;

(ii) person who has qualifications, with the exception of age limit, entitled
to be elected as Pyithu Hluttaw representatives prescribed in Section 120;

(iii) person whose qualification does not breach the provisions under
Section 121 which disqualify a person from standing for election as the
Pyithu Hluttaw representatives;

(iv) (aa) person who has served as a Judge of the Region or State High
Court for at least five years; or

(bb) person who has served as a judicial officer or law officer for at least
10 years not lower than that of the Region or State Level;
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(cc) person who has practised as an advocate for at least 20 years;

(dd) person who is, in the opinion of the President, as an eminent jurist;

(v) person who is loyal to the Union and its citizens.

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(b) The appoitment of a person as the Attorney-General of the Union by

the President shall not be refused by the Pyidaungsu Hluttaw unless it can
clearly be proved that the person concerned does not meet the
qualification of the Attorney-General of the Union.

(c) The President has the right to submit again the list with a new name
replacing the one who has not been approved by the Pyidaungsu Hluttaw
for the appointment of a person as the Attorney-General of the Union.

(d) The Attorney-General of the Union is a member of the Union

Government.

(e) The Attorney General of the Union shall be responsible to the

President.

(f) If the Attorney General of the Union is a representative of a Hluttaw,

it shall be deemed that he has resigned from the day he is appointed as
Attorney General of the Union.
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(g) If the Attorney General of the Union is a Civil Services personnel, it

shall be deemed that he has retired according to the existing civil service
rules and regulations from the day he is appointed as the Attorney
General of the Union.

(h) If the Attorney General of the Union is a member of any political

party, he shall not take part in its party activities during the term of office
from the day he is appointed as the Attorney General of the Union.

7.9.13 Impeachment of the Attorney General of the Union

Section 238. If there is a need to impeach the Attorney General of the

Union, the same procedure for the impeachment of the Union Minister
under Section 233 shall be applied.

7.9.14 Appointment of the Deputy Attorney General

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Section 239.

(a) The President shall appoint, in his own volition, the persons from
among the Hluttaw representatives or from among those who are not
Hluttaw representatives who have the following qualifications, as Deputy
Attorney General to assist the Attorney General of the Union :

(i) person who has attained the age of 40 years;

(ii) person who has qualifications, with the exception of age limit, entitled
to be elected as Pyithu Hluttaw representatives prescribed in Section 120;

(iii) persons whose qualification does not breach the provisions under
Section 121 which disqualify a person from standing for electionas Pyithu
Hluttaw representatives;

(iv) (aa) person who has served as a Judge of the Region or State High
Court for at least five years; or

(bb) person who has served as a judicial officer or law officer for at least
10 years not lower than that of the Region or State Level; or

(cc) person who has practised as an advocate for at least 15 years;

(dd) person who is, in the opinion of the President, as an eminent jurist;

(v) person who is loyal to the Union and its citizens.

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(b) The Deputy Attorney-General shall be responsible to the Attorney-

General of the Union and to the President through the Attorney-General
of the Union.

(c) If the Deputy Attorney-General of the Union is a representative of a

Hluttaw or a Civil Services personnel or a member of a political party, the
provisions of Sub-Sections (f), (g) and (h) of Section 237 shall be applied.
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7.9.15 Term of office, resignation, termination of office, filling the

vacancy of the Attorney-General of the Union and the Deputy
Attorney-General

Section 240.

(a) The term of the Attorney-General of the Union and the Deputy
Attorney-General is normally the same as that of the President.

(b) The Attorney-General of the Union or the Deputy Attorney-General

may resign from office on his own volition due to a certain reason before
expiry of the term of office, after submitting his written resignation to the
President.

(c) The President may direct to resign the Attorney-General of the Union
or the Deputy Attorney-General who cannot discharge his duties
efficiently. If either of them fails to comply, he shall be terminated from
his duties.
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(d) If the office of the Attorney-General of the Union or the Deputy

Attorney- General becomes vacant due to resignation, removal from
office, death orany other reason, the President shall have the right to
appoint and assign duties to a new Attorney-General of the Union or the
Deputy Attorney-General in accord with the provisions of the
Constitution relating to the appointment of the Attorney-General of the
Union or the Deputy Attorney-General. The term of the newly appointed
Attorney-General of the Union or the Deputy Attorney-General shall be
the same as the remaining term of office of the President.

(e) (i) When the President before the expiry of his term in office, has
appointed the Attorney-General of the Union and the Deputy Attorney-
General, and the President‟s office is vacant due to resignation or death or
any other reason, the Attorney-General of the Union or the Deputy
Attorney-General may be continued to be assigned or shall continue to
perform their duties until the new elected President has appointed and
assigned duties to the new Attorney-General of the Union or the Deputy
Attorney-General in accord with the provisions of the Constitution .
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(ii) The term of the new appointed Attorney-General of the Union and the
Deputy Attorney-General shall be up to the expiry of the remaining term
of the new President.

(f) Duties, powers and rights of the Attorney-General of the Union and
the Deputy Attorney-General shall be prescribed by law.

7.9.17 The Region Government or the State Government

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Section 247. (a) The Head of the Region or State shall be called the Chief
Minister of the Region or State.

(b) The Member of the Region or State Government shall be called the
Minister of the Region or State.

7.9.18 Formation of the Region Government or State Government

Section 248.

(a) The Region Government is formed in the Region and State

Government is formed in the State respectively.

(b) The Region or State Government is formed with the following

persons:

(i) the Chief Minister of the Region or State;

(ii) the Ministers of the Region or State;

(iii) the Adovocate General of the Region or State.

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(c) The President, with the approval of the Region or State Hluttaw
concerned, may:

(i) specify the Region or State Ministries as may be necessary.Moreover,

he may make changes and additions to the specified Ministries;

(ii) specify the number of the Ministers of the Region or State as may be
necessary. Moreover, the specified number may be increased or
decreased.

7.9.19 Executive powers of the Region or State Government

Section 249. Subject to the provisions of the Constitution, the executive

power of the Region or State Government extends to the administrative
matters which the Region or State Hlutttaw has power to make laws.
Moreover, it also extends to the matters which the Region or State
Government is permitted to perform in accord with any Union Law.
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Section 250. The Region or State Government shall have the

responsibility to assist the Union Government in the preservation of the
stability of the Union, community peace and tranquility and prevalence of
law and order.

Section 251. The Region or State Government shall, subject to the

policies adopted by the Union Government and Union Laws, implement
projects that are to be undertaken in the Region or State with the approval
of the Region or State Hluttaw concerned.

Section 252. The Region or State Government shall, in accord with the
provisions of the Constitution, submit the Region or State Budget Bill
based on the annual Union Budget to the Region or State Hluttaw
concerned.
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Section 253. The Region or State Government shall, if the Region or

State Budget Bill is unable to promulgate before the end of the Budget
year, expend within the framework of the general expenditure included in
the last-enacted Budget Law of the Region or State Hluttaw.

7.9.20 Office of the Region or State Government

Section 260. The Head of the General Administration Department of the

Region or State is the ex-officio Secretary of the Region or State
Government concerned. Moreover, the General Administration
Department of the Region or State is the Office of the Region or State
Government concerned.
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7.9.21 Chief Minister of the Region or State

Appointment of the Chief Minister of the Region or State

Section 261. (a) The Chief Minister of the Region or State shall have the
following qualifications :

(i) person who has attained the age of 35 years;

(ii) person who has qualifications, with the exception of the age limit,
entitled to be elected as Pyithu Hluttaw representatives prescribed in
Section 120;

(iii) person whose qualification does not breach the provisions under
Section 121 which disqualify a person from standing for election as
Pyithu Hluttaw representatives;

(iv) person who is loyal to the Union and its citizens.

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(b) In order to appoint the Chief Minister of the Region or State

concerned, the President shall :

(i) select a suitable Hluttaw representative who has the prescribed

qualifications from among the Region or State Hluttaw representatives
concerned;

(ii) submit the list of the elected Hluttaw representatives to the Region or
State Hluttaw concerned for its approval.

(c) The President shall appoint the Hluttaw representative approved by

the Region or State Hluttaw as the Chief Minister of the Region or State
concerned.

(d) The appointment of a person as a Chief Minister of the Region or

State nominated by the President shall not be refused by the Region or
State Hluttaw unless it can clearly be proved that the person concerned
 168

doesnot meet the qualifications of the Chief Minister of the Region or

State.

(e) The President has the right to submit again the list with a new name
replacing

the one who has not been approved by the Region or State Hluttaw for the
appointment of the Chief Minister.

7.9.24 Administrative Body of the Self-Administered Division or Self-

Administered Zone

Section 275. The Administrative Body of Self-Administered Division or

Self-Administered Zone shall be called the leading body of the Self-
Administered Division or leading body of the Self-Administered Zone.
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7.9.25 Formation of Leading Bodies of the Self-Administered

Division and the Self-Administered Zone

Section 276. (a) Being Self-Administered Areas, the Self-Administered

Division and the Self-Administered Zones are of equal status.

(b) Leading Bodies of the Self-Administered Division and the Self-

Administered Zone are formed respectively in each and every Self-
Administered Division and the Self-Administered Zone. Such Leading
Bodies exercise legislative power vested under the Schedule Three of the
Constitution.

(c) Leading Bodies of the Self-Administered Division or the Self-

Administered Zone shall consist of at least 10 members.

(d) Leading Bodies of the Self-Administered Division or the Self-

Administered Zone shall be formed with the following persons:

(i) Region or State Hluttaw representatives elected from townships in the

Self-Administered Division or Self-Administered Zone concerned;
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(ii) the Defence Services personnel representatives nominated by the

Commander-in-Chief of the Defence Services to assign duties relating to
Security or Border Affairs;

(iii) Additional representatives selected by persons stated in Sub-Section

(d) (i) and (ii).

(e) Members of the Leading Bodies of the Self-Administered Division or

the Self-Administered Zone stated in above Sub-Section (d)(i) and (ii)
shall, after co-ordinating among themselves, select a suitable person as
the Chairperson of the Self-Administered Division or the Self-
Administered Zone from the Region or State Hluttaw representatives
elected from the townships in the Self-Administered Division or the Self-
Administered Zone. The name of the person so elected shall be submitted
to the President through the Chief Minister of the Region or State
concerned.
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(f) The President shall appoint the person who is nominated as the
Chairperson of the Self-Administered Division or the Self-Administered
Zone concerned.

(g) The Chairperson of the Self-Administered Division or the Self-

Administered Zone is the ex-officio Minister in the Region or State
concerned. Except for the method of the appointment of the Minister of
the Region or State, the other provisions of the Constitution shall be
applied to the Chairperson of the Self-Administered Division or Self-
Administered Zone.
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(h) The Chairperson of the Self-Administered Division or Self-

Administered Zone and members of the Leading Body concerned shall:

(i) except the National races who have already obtained the Self-
Administered Division or Self-Administered Zone concerned residing in
the Self-Administered Division or Self-Administered Zone concerned, if
they are National races that are deemed by the authority concerned to
have a population of over 10,000, from the remaining National races,
each representative of the said National races shall be elected and
appointed as a member of the Leading Body. The elected member of the
Leading Body shall have the prescribed qualifications of Hluttaw
representatives of the Region or State under Section 169;

(ii) if the number of members of the Leading Body of the Self-

Administered Division or Self-Administered Zone is less than 10
members, the required number of members from those residing in the
Self-Administered Division or Self-Administered Zone concerned and
who have qualifications prescribed for the Region or State Hluttaw
representatives shall be elected and appointed to fill up 10 members as
they desire.
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(i) The Commander-in-Chief of the Defence Services shall assign the

duties to the one-fourth of the total number of members with the Defence
Services personnels in the Leading Bodies of the Self-Administered
Division or Self-Administered Zone, as necessary.

(j) The Defence Services personnel, nominated in accord with the law by
the Commander-in-Chief of the Defence Services, to be assigned as the
members of the Leading Bodies of the Self-Administered Division or
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Self-Administered Zone shall have qualifications of the Region or

StateHluttaw representatives.

(k) (i) The Chairperson of the Leading Bodies of the Self-Administered

Division or Self-Administered Zone concerned shall declare the name of
the members of the Leading Bodies of the Self-Administered Division or
Self- Administered Zone.

(ii) The Chairperson of the Leading Bodies of the Self-Administered

Division or Self- Administered Zone shall be responsible to the Region or
State Chief Minister concerned, and to the President through the Chief
Minister concerned.

(iii) Members of Leading Bodies of the Self-Administered Division or

Self-Administered Zone shall be responsible to their Chairperson.

(iv) The term of office, taking action, resignation, termination of duty and
filling the vacancy of the Chairperson of the Leading Bodies of the Self-
Administered Division or Self-Administered Zone shall be prescribed by
law.
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(l) Duties, powers and rights of the Chairperson and members of the
Leading Bodies of the Self-Administered Division or Self-Administered
Zone shall be perscribed by law.

7.9.26 Executive Powers of the Leading Bodies of the Self-

Administered Division or Self-Administered Zone

Section 277. Subject to provisions of the Constitution, the Self- executive

power of the Leading Bodies of the Self-Administered Division or Self-
Administered Zone extend to the following matters :

(a) on which the Leading Bodies of the Self-Administered Division or

Self-Administered Zone has power to make law under Schedule Three;
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(b) on which the Leading Bodies of the Self-Administered Division or

Self-Administered Zone has power to implement in accord with any
lawenacted by the Pyidaungsu Hluttaw;

(c) on which the Leading Bodies of the Self-Administered Division or

Self-Administered Zone has power to implement in accord with any law
enacted by the Region or State Hluttaw concerned.

Section 278. The Leading Bodies of the Self-Administered Division or

Self-Administered Zone shall be responsible to assist the Union
Government in preserving stability of the Union, community peace and
tranquillity and prevalence of law and order.
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Section 279. The Leading Bodies of the Self-Administered Division or

Self- Administered Zone shall :

(a) subject to the policies of the Union Government draw work

programmes for the development of their territory and shall co-ordinate
with the Region or State Government concerned;

(b) draw annual budgets and co-ordinate for approval with the Region or
State Government concerned in accord with the provisions of the
Constitutions;

(c) have the right to expend the allotted fund included in the Budget Law
of the Region or State Government concerned in accord with the rules;

(d) have the right to expend within the permitted framework to the
general

expenditure included in the last-enacted Budget Law of the Region or

State Hluttaw if the Region or State Hluttaw is unable to pass the Region
or State Budget Bill submitted by the Region or State Government.
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Section 280. The Leading Bodies of the Self-Administered Division or

Self-Administered Zone may, in accord with the law, supervise, co-
operate and co-ordinate the functions of the Civil Services organizations
which are performing the duties within their territory.

Section 281. The Leading Bodies of the Self-Administered Division or

Self-Administered Zone shall submit reports of the general situations of
 179

their territory to the Union Government and the Region or State

Government concerned.

Section 282. The Leading Bodies of the Self-Administered Division or

Self-Administered Zone shall perform the functions which are
occasionally assigned by the Union Government and the Region or State
Government concerned.

7.10.2 Supreme Court of the Union

Constitution of the Supreme Court of the Union

Section 294. In the Union, there shall be a Supreme Court of the Union.
Without affecting the powers of the Constitutional Tribunal and the
Courts-Martial, the Superme Court of the Union is the highest Court of
the Union.
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7.10.3 Original Jurisdiction of the Supreme Court of the Union

Section 295. (a) Only the Supreme Court of the Union has the following
original jurisdiction :

(i) in matters arising out of bilateral treaties concluded by the Union;

(ii) in other disputes, except the Constitutional problems, between the

Union Government and the Region or State Governments;

(iii) in other disputes, except the Constitutional problems, among the

Regions, among the States, between the Region and the State and
between the Union Territory and the Region or the State;

(iv) other matters as prescribed by any law.

(b) As the Supreme Court of the Union is the highest court of the Union,
it is the court of final appeal.

(c) The judgments of the Supreme Court of the Union are final and
conclusive and have no right of appeal.

(d) The Supreme Court of the Union, subject to any provision of the
Constitution or any provision of other law, has the appellate jurisdiction
to decide judgments passed by the High Courts of the Regions or the
States. Moreover, theSupreme Court of the Union also has the appellate
jurisdiction to decide judgments passed by the other courts in accord with
the law.

(e) The Supreme Court of the Union has the revisional jurisdiction in
accord with the law.
181
 182

Section 296. The Supreme Court of the Union:

(a) has the power to issue the following writs :

(i) Writ of Habeas Corpus;

(ii) Writ of Mandamus;

(iii) Writ of Prohibition;

(iv) Writ of Quo Warranto;

(v) Writ of Certiorari.

(b) The applications to issue writs shall be suspended in the areas where
the state of emergency is declared.

7.10.4 Judiciary Budget

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Section 297. The Supreme Court of the Union shall submit judiciary
budget to the Union Government in order to include and present in the
Annual Budget Bill of the Union in accord with the provisions of the
Constitution.

7.10.5 Submission of the Judiciary Situation

Section 298. The Chief Justice of the Union may submit important
judiciary situation concerning the Union or the public, either to the
session of the Pyidaungsu Hluttaw or the Pyithu Hluttaw or the Amyotha
Hluttaw from time to time.

7.10.6 Appointment of the Chief Justice of the Union and the Judges
of the Supreme Court of the Union
 184

Section 299. (a) The Head of the Supreme Court of the Union shall be
called the Chief Justiceof the Union.

(b) Judges of the Supreme Court of the Union including the Chief Justice
of the Union may be appointed in the Supreme Court from a minimum of
seven and a maximum of 11 in number.

(c) (i) The President shall submit the nomination of the person suitable to
be appointed as the Chief Justice of the Union to the Pyidaungsu Hluttaw
and seek its approval.

(ii) The Pyidaungsu Hluttaw shall have no right to refuse the person
nominated by the President for the appointment of Chief Justice of the
Union and Judges of the Supreme Court of the Union unless it can clearly
be proved that the persons do not meet the qualifications for the post
prescribed in Section 301.

(iii) The President has the right to submit again the list furnished with a
new name replacing the one who has not been approved by the
Pyidaungsu Hluttaw for the appointment of the Chief Justice of the
Union.

(iv) The President shall appoint the person who has been approved by the
Pyidaungsu Hluttaw as the Chief Justice of the Union.

(d) (i) The President, in co-ordination with the Chief Justice of the Union,
shall submit the nomination of the persons suitable to be appointed as the
Judges of the Supreme Court of the Union to the Pyidaungsu Hluttaw and
seek its approval.

(ii) The Pyidaungsu Hluttaw has no right to refuse the persons nominated
by the President for the appointment of the Chief Justice of the Union and
Judges of the Supreme Court of the Union unless it can clearly be proved
 185

the persons concerned do not possess the qualifications prescribed for

Judges of Supreme Court of the Union in Section 301.

(iii) The President has the right to submit again the list furnished with a
new name replacing the one who has not been approved by Pyidaungsu
Hluttaw for the appointment of a Judge of the Supreme Court of the
Union.

(iv)The President shall appoint the persons approved by

PyidaungsuHluttaw as Judges of the Supreme Court of the Union.
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Section 300. (a) The Chief Justice of the Union or Judges of the Supreme
Court of the Union must be free from party politics.

(b) The Chief Justice of the Union or Judges of the Supreme Court of the
Union, if they are Civil Services personnel, shall be deemed to have
retired in accord with the existing Civil Services Regulations
commencing from the day of the appointment as the Chief Justice of the
Union or Judge of the Supreme Court of the Union.
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7.10.7 Qualifications of the Chief Justice of the Union and Judges of

the Supreme Court of the Union

301. The Chief Justice of the Union and Judges of the Supreme Court of
the Union shall be a person of following qualifications :

(a) not younger than 50 years and not older than 70 years;

(b) who has qualifications, with the exception of the age limit, prescribed
in Section 120 for Pyithu Hluttaw representatives;

(c) whose qualifications does not breach the provisions under the Section
121 which disqualify him from standing for election as Pyithu Hluttaw
representatives;

(d) (i) who has served as a Judge of the High Court of the Region or State
for at least five years; or

(ii) who has served as a Judicial Officer or a Law Officer at least 10 years
not lower than that of the Region or State level; or

(iii) who has practised as an Advocate for at least 20 years; or

(iv) who is, in the opinion of the President, an eminent jurist;

(e) loyal to the Union and its citizens;

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(f) who is not a member of a political party;

(g) who is not a Hluttaw representative.

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7.10.8 Impeachment of the Chief Justice of the Union and Judges of

the Supreme Court of the Union

Section 302. (a) The President or the representatives of the Pyithu

Hluttaw or Amyotha Hluttaw may impeach the Chief Justice of the Union
or any Judge of the Supreme Court of the Union for any of the following
reasons :

(i) high treason;

(ii) breach of any provision of the Constitution;

(iii) misconduct;

(iv) disqualifications of the qualifications of the Chief Justice of the

Union and Judges of the Supreme Court of the Union prescribed under
Section 310;

(v) inefficient discharge of duties assigned by law.

(b) If the President wishes to impeach :

(i) he shall submit the charge to the Speaker of the Pyidaungsu Hluttaw;

(ii) the Speaker of the Pyidaungsu Hluttaw shall form an investigation

body and cause the charge to be investigated in accord with the law;

(iii) in forming the investigation body, an equal number of representatives

of the Pyithu Hluttaw and Amyotha Hluttaw shall be included and any
suitable member of the body be assigned as the Chairperson of such
body;
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(iv) the time for the completion of the investigation shall be determined
on the volume of work;

(v) the President may, himself in person or through a representative,

explain and present the charge before the investigation body and has also
the right to submit evidence and witnesses;

(vi) when the charge is being investigated, the person being charged shall
be given the right to defend himself in person or through a representative;

(vii) the Speaker of the Pyidaungsu Hluttaw shall, on being submitted the
findings of the investigation concerning the impeachment by
theinvestigation body, present it to the Pyidaungsu Hluttaw;

(viii) the Speaker of the Pyidaungsu Hluttaw shall, if the resolution is

passed that the charge has been substantiated and the alleged person is
unfit to continue to serve as the Chief Justice of the Union or a Judge of
the Supreme Court of the Union by the two-thirds of the total number of
the Pyidaungsu Hluttaw representatives, present and report the said
resolution to the President;

(ix) on presentation of the report, the President shall, proceed to remove

the Chief Justice of the Union or the Judge of the Supreme Court of the
Union who has been impeached from office;

(x) if the Pyidaungsu Hluttaw resolves that the charges has failed, the
Speaker of the Pyidaungsu Hluttaw shall present and report the said
resolution to the President;

(c) if the representatives of the Pyithu Hluttaw or the Amyotha Hluttaw

wish to impeach :

(i) the provisions for the impeachment of the President or the Vice-
President under Section 71 shall be applied;
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(ii) the President shall, if the Hluttaw which made the investigation
resolves and reports that the charge made upon the Chief Justice of the
Union or any Judge of the Supreme Court of the Union has been
substantiated and the person being charged is unfit to continue to serve as
the Chief Justice of the Union or Judge of the Supreme Court of the
Union, proceed to remove the Chief Justice of the Union or the Judge of
the Supreme Court of the Union who has been impeached from office;

(iii) if the Hluttaw which made the investigation resolves that the charge
has been failed, the Chairperson of the Hluttaw concerned shall
presentand report the resolution to the President.
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 193

7.10.9 Term of the Chief Justice of the Union and Judges of the
Supreme Court of the Union
 194

Section 303. The Chief Justice of the Union and Judges of the Supreme
Court of the Union shall hold office up to the age of 70 years unless one
of the following occurs :

(a) resignation on his own volition;

(b) being impeached in accord with the provisions under the Constitution
and removed from office;

(c) being found to be unable to continue to serve due to permanent

disability caused by either physical or mental defect according to the
findings of the medical board formed by law;

(d) death.
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Section 304. Duties, powers and rights of the Chief Justice of the Union
and Judges of the Supreme Court of the Union shall be prescribed by law.

7.10.10 High Courts of the Region or High Courts of the State

Formation of High Courts of the Region or High Courts of the State

Section 305. There is the High Court of the Region in the Region and the
High Court of the State in the State.

7.10.11 Jurisdictions of High Courts of the Region or High Courts of

the State

Section 306. High Courts of the Region or State shall have the following
jurisdictions in accord with the law :

(a) adjudicating on original case;

(b) adjudicating on appeal case;

(c) adjudicating on revision case;

(d) adjudicating on matters prescribed by any law.

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Section 307. (a) For the purpose of judicial administration, the High
Court of Mandalay Region is the High Court of the Courts situated in
Nay Pyi Taw.

(b) For the purpose of judicial administration, where any area located in
the Region or State is designated as a Union Territory, the High Court of
the Region or State concerned is the High Court of the Courts situated in
the said Union Territory.

7.10.12 Appointment of the Chief Justice and Judges of the High

Court of the Region or the High Court of the State
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Section 308. (a) (i) The Head of the High Court of the Region or the High
Court of the State shall be called the Chief Justice of the High Court of
the Region or the Chief Justice of the High Court of the State.

(ii) In the High Court of the Region or the High Court of the State, judges
of the High Court of the Region or Judges of the High Court of the State
including the Chief Justice of the High Court of the Region or the Chief
Justice of the High Court of the State may be appointed from a minimum
of three and a maximum of seven in number.

(b) (i) The President, in co-ordination with the Chief Justice of the Union
and the Chief Minister of the Region or State concerned, shall prepare the
nomination for the appointment of the Chief Justice of the High Court of
the Region or State concerned and the Chief Minister of the Region or
State concerned, in co-ordination with the Chief Justice of the Union,
shall prepare the nomination for the appointment of the Judges of the
High Court of the Region or State concerned, and the said nomination
shall be sent to the Region or State Hluttaw concerned.

(ii) The Region or State Hluttaw concerned shall have no right to refuse
the person or persons nominated by the President, in coordination with
the Chief Justice of the Union and the Chief Minister of the Region or
State concerned, for the appointment of the ChiefJustice of the High
Court of the Region or State concerned, or the person or persons
nominated by the Chief Minister of the Region or State concerned, in co-
ordination with the Chief Justice of the Union, for the appointment of
Judges of the High Court of the Region or State concerned unless it can
clearly be proved that the person does not meet the qualifications
prescribed under Section 310 for the Chief Justice of the High Court of
 198

the Region or State and the Judge of the High Court of the Region or
State.

(iii) There is the right to resubmit a new nomination list as prescribed in

place of the persons who are refused under Sub-Section (ii).

(iv) The President shall appoint persons approved by the Region or State
Hluttaw as the Chief Justice of the High Court of the Region or State
concerned and Judges of the High Court of the Region or State
concerned.
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Section 309. (a) The Chief Justice of the High Court of the Region or
State and Judges of the High Court of the Region or State must be free
from party politics.

(b) The Chief Justice of the High Court of the Region or State and Judges
of the High Court of the Region or State, if they are civil service
personnel, shall be deemed to have retired from the civil service in accord
with the existing Civil Service Regulations commencing from the day
 200

they have been appointed as the Chief Justice of the High Court of the
Region or State and the Judge of the High Court of the Region or State.

7.10.13 Qualification of the Chief Justice of the High Court of the

Region or the High Court of the State and Judges of the High Court
of the Region or the High Court of the State

Section 310. The Chief Justice of the High Court of the Region or State
and Judges of the High Court of the Region or State shall be a person of
the following qualifications :

(a) not younger than 45 years and not older than 65 years of age;

(b) who has the qualifications, with the exception of the age limit,
prescribed under Section 120 for the Pyithu Hluttaw representatives;
 201

(c) whose qualifications does not breach the provisions under Section 121
which disqualify him from standing for election as Pyithu Hluttaw
representatives;

(d) (i) who has served as a Judicial Officer or Law Officer at least five
years not lower than that of the Region or State level or as a Judicial
Officer or Law Officer at least 10 years not lower than that of the District
level for; or

(ii) who has practised as an Advocate for at least 15 years; or

(iii) who is, in the opinion of the President, an eminent jurist.

(e) loyal to the Union and its citizens;

(f) who is not a member of a political party;

(g) who is not a Hluttaw representative.

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7.10.14 Impeachment of the Chief Justice of the High Court of the

Region or the High Court of the State and Judges of the High Court
of the Region or the High Court of the State

Section 311. (a) The Chief Justice of the High Court of the Region or
State or Judges of the High Court of the Region or State may be
impeached on any of the

following reasons :

(i) high treason;

(ii) breach of any provision of the Constitution;

(iii) misconduct;

(iv) disqualification of the qualification of the Chief Justice of the High

Court of the Region or State and Judges of the High Court of the Region
or State prescribed under Section 310;
 203

(v) inefficient discharge of duties assigned by law.

(b) If the President wishes to impeach the Chief Justice of the High Court
of the Region or State or the Chief Minister of the Region or State wishes
toimpeach any of the Judges of the High Court of the Region or State
concerned, he shall submit the charge to the Speaker of the Region or
State Hluttaw.

(c) If the representatives of the Region or State Hluttaw wish to impeach

the Chief Justice of the High Court of the Region or State concerned or
the Judge of the High Court of the Region or State concerned, the charge
signed by not less than one-fourth of the total number of representatives
of the Region or State Hluttaw concerned shall be submitted to the
Speaker of the Region or State Hluttaw concerned.

(d) The Speaker of the Region or State Hluttaw shall form an

investigation body and cause the charge to be investigated in accord with
the law. The time for the completion of the investigation shall be
determined on the volume of work.

(e) (i) If the President or the Chief Minister of the Region or the Chief
Minister of the State wishes to carry out the impeachment, an
investigation body shall be formed with the representatives of the Region
or State Hluttaw concerned and a suitable person from among the
members of the investigation body shall be assigned as the Chairperson.

(ii) The President or the Chief Minister of the Region or State concerned
may, himself in person or through a representative, explain the charge
before the investigation body and has also the right to submit relevant
evidences and witnesses.

(f) When the charge is being investigated, the person being charged shall
be given the right to defend himself in person or through a representative.
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(g) The Speaker of the Region or State Hluttaw shall, on being submitted
the findings of the investigation concerning the impeachment by the
investigation body, report it to the Region or State Hluttaw.

(h) The Speaker of the Region or State Hluttaw shall, if the resolution is
passed that the charge has been substantiated and the alleged person is
unfit tocontinue to serve as the Chief Justice of the High Court of the
Region or State or a Judge of the High Court of the Region or State by
two-thirds of the total number of the representatives of the Region or
State Hluttaw, if it is the case concerning the Chief Justice of the High
Court of the Region or State, the said resolution is submitted to the
President and if it is the case concerning a Judge of the High Court of the
Region or State, the said resolution is submitted to the Chief Minister of
the Region or State concerned. The Chief Minister of the Region of the
State shall, on receiving the said resolution, submit it to the President.

(i) On receiving the report, the President shall, proceed to remove the
Chief Justice of the High Court of the Region or State or the Judge of the
High Court of the Region or State who has been impeached from office.

(j) If the Region or State Hluttaw concerned resolves that the charge has
failed, the Speaker of the Region or State Hluttaw shall, if it is the case
concerning the Chief Justice of the High Court of the Region or State,
such resolution is submitted to the President and if it is the case
concerning the Judge of the High Court of the Region or State, such
resolution is submitted to the Chief Minister of the Region or State
concerned.
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7.10.15 Term of the Chief Justice of the High Court of the Region or
the High Court of the State and Judges of the High Court of the
Region or High Court of the State

Section 312. The Chief Justice of the High Court of the Region or State
and Judges of the High Court of the Region or State shall hold office up
to the age of 65 years unless any of the following occurs :

(a) resignation on his own volition;

(b) being impeached in accord with the provisions under the Constitution
and removed from office;
 208

(c) being found to be unable to continue to serve due to permanent

disability caused by either physical or mental defect according to the
findings of the medical board formed by law;

(d) death.

Section 313. Duties, powers and rights of the Chief Justice of the High
Court of the Region or State and the Judges of the High Court of the
Region or State shall be prescribed by law.
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7.10.16 Courts under the Supervision of the High Court of the

Region or the High Court of the State

Section 314. The following levels of Courts are under the supervision of
the High Court of the Region or State :

(a) if there is no Self-Administered Areas in the Region or State:

(i) District Courts;

(ii) Township Courts.

(b) if there is Self-Administered Areas in the Region or State:

(i) In the Self-Administered Division:

(aa) Court of the Self-Administered Division;

(bb) Township Courts.

(ii) In the Self-Administered Zone:

(aa) Court of the Self-Administered Zone;

(bb) Township Courts.

(iii) In the remaining areas:

(aa) District Courts;

(bb) Township Courts.

(c) In the Union Territory:

(i) District Courts;

(ii) Township Courts.

(d) Other Courts constituted by law.

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7.10.17 Jurisdiction of the District Courts and Township Courts

 211

Section 315. District Courts, Courts of the Self-Administered Division,

and Courts of the Self-Administered Zone, in accord with the law, have
the jurisdiction relating to original criminal cases, original civil cases,
appeal cases, revision cases or matters prescribed by any law.

Section 316. Township Courts, in accord with the law, have the
jurisdiction relating to original criminal cases, original civil cases or
matters prescribed by any law.

Section 317. The Judges appointed in accord with the law at the Courts
formed by the Constitution or any other law shall administer all judicial
affairs in the entire Union.

Section 318. (a) Appointment of Judges at various levels of Courts under

the supervision of the High Court of the Region or State, conferring
 212

judicial powers,prescribing the duties, powers and rights shall be in

accord with the law.

(b) Formation of staff organizations, comprising of officers and other

ranks at the Supreme Court of the Union, the High Courts of the Region
or State and other Courts, and prescribing duties, powers and rights shall
be in accord with the law.

7.10.18 Courts-Martial

Section 319. According to Sub-Section (b) of Section 293, the Courts-

Martial shall be constituted in accord with the Constitution and the other
law and shall adjudicate Defence Services personnel.

7.11The Constitutional Tribunal of the Union

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7.11.1 Formation of the Constitutional Tribunal of the Union

Section 320. The Constitutional Tribunal of the Union shall be formed

with nine members including the Chairperson.

Section 321. The President shall submit the candidature list of total nine
persons, three members chosen by him, three members chosen by the
Speaker of the Pyithu Hluttaw and three members chosen by the Speaker
of the Amyotha Hluttaw, and one member from among nine members to
be assigned as the Chairperson of the Constitutional Tribunal of the
Union, to the Pyidaungsu Hluttaw for its approval.

7.11.2 Functions and Duties of the Constitutional Tribunal of the

Union

Section 322. The functions and the duties of the Constitutional Tribunal
of the Union are as follows :

(a) interpreting the provisions under the Constitution;

 214

(b) vetting whether the laws promulgated by the Pyidaungsu Hluttaw, the
Region Hluttaw, the State Hluttaw or the Self-Administered Division
Leading Body and the Self-Administered Zone Leading Body are in
conformity with the Constitution or not;

(c) vetting whether the measures of the executive authorities of the

Union, the Regions, the States, and the Self-Administered Areas are in
conformity with the Constitution or not;

(d) deciding Constitutional disputes between the Union and a Region,

between the Union and a State, between a Region and a State, among the
Regions, among the States, between a Region or a State and a Self-
Administered Area and among the Self-Administered Areas;

(e) deciding disputes arising out of the rights and duties of the Union and
a Region, a State or a Self-Administered Area in implementing the Union
Law by a Region, State or Self-Administered Area;

(f) vetting and deciding matters intimated by the President relating to the
Union Territory;

(g) functions and duties conferred by laws enacted by the Pyidaungsu

Hluttaw.
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7.11.3 Effect of the Resolution of the Constitutional Tribunal of the

Union

Section 323. In hearing a case by a Court, if there arises a dispute whether

the provisions contained in any law contradict or conform to the
Constitution, and if no resolution has been made by the Constitutional
Tribunal of the Union on the said dispute, the said Court shall stay the
trial and submit its opinion to the Constitutional Tribunal of the Union in
 216

accord with the prescribed procedures and shall obtain a resolution. In

respect of the said dispute, the resolution of the Constitutional Tribunal of
the Union shall be applied to all cases.

Section 324. The resolution of the Constitutional Tribunal of the Union

shall be final and conclusive.

7.11.4 Submission to obtain the interpretation, resolution and

opinion of the Constitutional Tribunal of the Union

Section 325. The following persons and organizations shall have the right
to submit matters directly to obtain the interpretation, resolution and
opinion of the Constitutional Tribunal of the Union :

(a) the President;

(b) the Speaker of the Pyidaungsu Hluttaw;

 217

(c) the Speaker of the Pyithu Hluttaw;

(d) the Speaker of the Amyotha Hluttaw;

(e) the Chief Justice of the Union;

(f) the Chairperson of the Union Election Commission.

Section 326. The following persons and organizations shall have the right
to submit matters to obtain the interpretation, resolution and opinion of
the Constitutional Tribunal of the Union in accord with the prescribed
procedures :

(a) the Chief Minister of the Region or State;

(b) the Speaker of the Region or State Hluttaw;

(c) the Chairperson of the Self-Administered Division Leading Body or

the Self-Administered Zone Leading Body;

(d) Representatives numbering at least ten percent of all the

representatives of the Pyithu Hluttaw or the Amyotha Hluttaw.
 218

7.11.5 Appointment of the Chairperson and members of the

Constitutional Tribunal of the Union

Section 327. The President shall appoint the Chairperson and members of
the Constitutional Tribunal of the Union approved by the Pyidaungsu
Hluttaw .

Section 328. The Pyidaungsu Hluttaw shall have no right to refuse the
persons nominated for members of the Constitutional Tribunal of the
Union by the President unless it can clearly be proved that they are
disqualified.

Section 329. The President has the right to submit again, in accord with
the provisions of the Constitution, the new nomination list to replace the
 219

person who has not been approved by the Pyidaungsu Hluttaw for
appointment as member of the Constitutional Tribunal of the Union.

Section 330. A member of the Constitutional Tribunal of the Union shall:

(a) if he is a representative of any Hluttaw, be deemed to have resigned as

representative of the Hluttaw commencing from the day he has been
appointed as a member of the Constitutional Tribunal of the Union;

(b) if he is a Civil Services personnel, be deemed to have retired from the

Civil Services in accord with the existing Civil Services Regulations
commencing from the day he has been appointed as a member of the
Constitutional Tribunal of the Union;

(c) if he is a member of any political party, he shall not take part in its
partyactivities during his term, commencing from the day he has been
appointed a member of the Constitutional Tribunal of the Union.

Section 331. If a member of the Constitutional Tribunal of the Union

wishes to resign on his own volition from office before the expiry of his
term due to any reason, he may do so, after submitting his resignation in
writing to the President.

Section 332. If the position of a member of the Constitutional Tribunal of

the Union is vacant for any reason, the President may appoint a new
member of the Constitutional Tribunal of the Union in accord with the
provisions under the Constitution.
220
 221

7.11.6 Qualifications of the Member of the Constitutional Tribunal

of the Union

Section 333. The President, the Speaker of the Pyithu Hluttaw and the
Speaker of the Amyotha Hluttaw shall select from among the Hluttaw
representatives or among those who are not Hluttaw representatives with
three members each who has the following qualifications :

(a) person who has attained the age of 50 years;

(b) person who has qualifications, with the exception of the age limit,
prescribed

in Section 120 for Pyithu Hluttaw representatives;

(c) person whoes qualification does not breach the provisions under
Section 121 which disqualify a person standing for election as Pyithu
Hluttaw representatives;

(d) (i) person who has served as a Judge of the High Court of the Region
or State for at least five years; or

(ii) person who has served as a Judicial Officer or a Law Officer at least
10 years not lower than that of the Region or State level for;or

(iii) person who has practised as an Advocate for at least 20 years; or

(iv) person who is, in the opinion of the President, an eminent jurist.

(e) person who is not a member of a political party;

 222

(f) person who is not a Hluttaw representative;

(g) person who has political, administrative, economic and security

outlook;

(h) person loyal to the Union and its citizens.

 223

7.11.7 Impeachment of the Chairperson and the Members of the

Constitutional Tribunal of the Union

Section 334. (a) The Chairperson and members of the Constitutional

Tribunal of the Union may be impeached on any of the following reasons

(i) high treason;

(ii) breach of any of the provisions under the Constitution;

(iii) misconduct;

(iv) disqualification of the qualifications of member of the Constitutional

Tribunal of the Union prescribed under Section 333;

(v) inefficient discharge of duties assigned by law.

(b) If the Chairperson or any member of the Constitutional Tribunal of

the Union is to be impeached, it shall be done so in accord with the
impeachment provisions as prescribed under Section 302 of the Chief
Justice of the Union or a Judge of the Supreme Court of the Union.
 224

7.11.8 Term of the Constitutional Tribunal of the Union

Section 335. The term of the Constitutional Tribunal of the Union is the
same as that of the Pyidaungsu Hluttaw being five years. However, the
ongoing Constitution Tribunal of the Union, on expiry of its term, shall
continue its functions till the President forms a new Tribunal under the
Constitution.

Section 336. The formation and communication of the Constitutional

Tribunal of the Union, duties, powers and rights of the Chairperson and
members of the Tribunal shall be prescribed by law.
 225

7.12 Citizen, Fundamental Rights and Duties of the Citizens

Section 345. All persons who have either one of the following
qualifications are citizens of theRepublic of the Union of Myanmar:

(a) person born of parents both of whom are nationals of the Republic of
the Union of Myanmar;

(b) person who is already a citizen according to law on the day this
Constitution comes into operation.

Section 346. Citizenship, naturalization and revocation of citizenship

shall be as prescribed bylaw.

Section 347. The Union shall guarantee any person to enjoy equal rights
before the law andshall equally provide legal protection.

Section 348. The Union shall not discriminate any citizen of the Republic
of the Union of Myanmar,based on race, birth, religion, official position,
status, culture, sex and wealth.

Section 349. Citizens shall enjoy equal opportunity in carrying out the
following functions :

(a) public employment;

(b) occupation;
 226

(c) trade;

(d) business;

(e) technical know-how and vocation;

(f) exploration of art, science and technology.

Section 350. Women shall be entitled to the same rights and salaries as
that received by men inrespect of similar work.

Section 351. Mothers, children and expectant women shall enjoy equal
rights as prescribed bylaw.

Section 352. The Union shall, upon specified qualifications being

fulfilled, in appointing or assigningduties to civil service personnel, not
discriminate for or against any citizen of the Republicof the Union of
Myanmar, based on race, birth, religion, and sex. However, nothing in
thisSection shall prevent appointment of men to the positions that are
suitable for men only.

Section 353. Nothing shall, except in accord with existing laws, be

detrimental to the life andpersonal freedom of any person.

Section 354. Every citizen shall be at liberty in the exercise of the

following rights, if not contraryto the laws, enacted for Union security,
prevalence of law and order, community peaceand tranquility or public
order and morality:

(a) to express and publish freely their convictions and opinions;

(b) to assemble peacefully without arms and holding procession;

(c) to form associations and organizations;

(d) to develop their language, literature, culture they cherish, religion

theyprofess, and customs without prejudice to the relations between
onenational race and another or among national races and to other faiths.
 227

Section 355. Every citizen shall have the right to settle and reside in any
place within the Republicof the Union of Myanmar according to law.

Section 356. The Union shall protect according to law movable and
immovable properties ofevery citizen that are lawfully acquired.

Section 357. The Union shall protect the privacy and security of home,
property, correspondenceand other communications of citizens under the
law subject to the provisions of thisConstitution.

Section 358. The Union prohibits the enslaving and trafficking in persons.

Section 359. The Union prohibits forced labor except hard labor as a
punishment for crime dulyconvicted and duties assigned by the Union in
accord with the law in the interest of thepublic.

Section 360. (a) The freedom of religious right given in Section 34 shall
not include anyeconomic, financial, political or other secular activities
that may be associated with religious practice.

(b) The freedom of religious practice so guaranteed shall not debar the
Union

from enacting law for the purpose of public welfare and reform.

Section 361. The Union recognizes special position of Buddhism as the

faith professed by thegreat majority of the citizens of the Union.

Section 362. The Union also recognizes Christianity, Islam, Hinduism

and Animism as the religionsexisting in the Union at the day of the
coming into operation of this Constitution.

Section 363. The Union may assist and protect the religions it recognizes
to its utmost.

Section 364. The abuse of religion for political purposes is forbidden.

Moreover, any act whichis intended or is likely to promote feelings of
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hatred, enmity or discord between racial orreligious communities or sects

is contrary to this Constitution. A law may be promulgatedto punish such
activity.

Section 365. Every citizen shall, in accord with the law, have the right to
freely develop literature,culture, arts, customs and traditions they cherish.
In the process, they shall avoid any actdetrimental to national solidarity.
Moreover, any particular action which might adverselyaffect the interests
of one or several other national races shall be taken only after
coordinatingwith and obtaining the settlement of those affected.

Section 366. Every citizen, in accord with the educational policy laid
down by the Union:

(a) has the right to education;

(b) shall be given basic education which the Union prescribes by law
ascompulsory;

(c) have the right to conduct scientific research explore science, work
withcreativity and write to develop the arts and conduct research freely
otherbranches of culture.

Section 367. Every citizen shall, in accord with the health policy laid
down by the Union, havethe right to health care.

Section 368. The Union shall honour and assist citizens who are
outstanding in educationirrespective of race, religion and sex according to
their qualifications.

Section 369. (a) Subject to this Constitution and relevant laws, every
citizen has the right to elect and right to be elected to the Pyithu Hluttaw,
the Amyotha Hluttaw, and the Region or State Hluttaw.
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(b) Relevant electorate has the right to recall a Hluttaw representative in

accord with the law.

Section 370. Every citizen has, in accord with the law, the right to
conduct business freely in the Union, for national economic development.

Section 371. The Union may assist the access to technology, investment,
machinery, raw material, so forth, for national economic development.

Section 372. The Union guarantees the right to ownership, the use of
property and the right to private invention and patent in the conducting of
business if it is not contrary to the provisions of this Constitution and the
existing laws.

Section 373. Any person who committed a crime, shall be convicted only
in accord with the relevant law then in operation. Moreover, he shall not
be penalized to a penalty greater than that is applicable under that law.

Section 374. Any person convicted or acquitted by a competent court for

an offence shall not be retried unless a superior court annuls the judgment
and orders the retrial.

Section 375. An accused shall have the right of defence in accord with the
law.

Section 376. No person shall, except matters on precautionary measures

taken for the security of the Union or prevalence of law and order, peace
and tranquility in accord with the law in the interest of the public, or the
matters permitted according to an existing law, be held in custody for
more than 24 hours without the remand of a competent magistrate.

Section 377. In order to obtain a right given by this Chapter, application

shall be made in accord with the stipulations, to the Supreme Court of the
Union.
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Section 378. (a) In connection with the filing of application for rights
granted under this Chapter, the Supreme Court of the Union shall have
the power to issue the following writs as suitable :

(1) Writ of Habeas Corpus;

(2) Writ of Mandamus;

(3) Writ of Prohibition;

(4) Writ of Quo Warranto;

(5) Writ of Certiorari.

(b) The right to issue writs by the Supreme Court of the Union shall not
affect the power of other courts to issue order that has the nature of writs
according to the existing laws.

Section 379. At the time of the occurrence the following situation, the
rights under Section 377 shall not be suspended unless the public safety
may so require :

(a) in time of war;

(b) in time of foreign invasion;

(c) in time of insurrection.

Section 380. Every citizen who has relations with foreign countries shall
have the right to seek protection of the Union at home or abroad.

Section 381. Except in the following situations and time, no citizen shall
be denied redress by due process of law for grievances entitled under law

(a) in time of foreign invasion;

(b) in time of insurrection;

(c) in time of emergency.

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Section 382. In order to carry out their duties fully and to maintain the
discipline by the DefenceForces personnel or members of the armed
forces responsible to carry out peace and security, the rights given in this
Chapter shall be restricted or revoked through enactment to law.

Section 383. Every citizen has the duty to uphold:

(a) non-disintegration of the Union;

(b) non-disintegration of national solidarity;

(c) perpetuation of sovereignty.

Section 384. Every citizen has duty to abide by the provisions of this
Constitution.

Section 385. Every citizen has the duty to safeguard independence,

sovereignty and territorial integrity of the Republic of the Union of
Myanmar.

Section 386. Every citizen has the duty to undergo military training in
accord with the provisions of the law and to serve in the Armed Forces to
defend the Union.

Section 387. Every citizen, with the Union Spirit, has the duty to enhance
unity among national races and to ensure public peace and stability.

Section 388. Every citizen has the duty for the emergence of a modern
developed Nation.

Section 389. Every citizen has the duty to pay taxes to be levied
according to the law.

Section 390. Every citizen has the duty to assist the Union in carrying out
the following matters:

(a) preservation and safeguarding of cultural heritage;

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(b) environmental conservation;

(c) striving for development of human resources;

(d) protection and preservation of public property.

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7.13 AMENDMENT OF THE CONSTITUTION

Section 433. Any provision of this Constitution may be amended in the

manner herein after provided:

(a) the proposal to amend the Constitution shall be submitted in the form
of a Bill;

(b) the Bill to amend the Constitution shall not contain other proposals.

Section 434. The Bill to amend the Constitution shall be submitted to the
Pyidaungsu Hluttaw.

Section 435. If twenty percent of the total number of the Pyidaungsu

Hluttaw representatives submit the Bill to amend the Constitution, it shall
be considered by the Pyidaungsu Hluttaw.
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Section 436. (a) If it is necessary to amend the provisions of Sections 1 to

48 in Chapter I, Sections 49 to 56 in Chapter II, Sections 59 and 60 in
Chapter III, Sections 74, 109, 141 and 161 in Chapter IV, Sections 200,
201, 248 and 276 in Chapter V, Sections 293, 294, 305, 314 and 320 in
Chapter VI, Sections 410 to 432 in Chapter XI and Sections 436 in
Chapter XII of this Constitution, it shall be amended with the prior
approval of more than seventy-five percent of all the representatives of
the Pyidaungsu Hluttaw, after which in a nation-wide referendum only
with the votes of more than half of those who are eligible to vote.

(b) Provisions other than those mentioned in Sub-Section (a) shall

beamended only by a vote of more than seventy-five percent of all the
representatives of the Pyidaungsu Hluttaw.
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