1947 Burma Constitution
Zulema Estabrooks
The 2008 Constitution, the country's third constitution,[2] was published in September 2008[3] after a referendum, and came into force on 31 January 2011.[4] Under this current constitution, the Tatmadaw (Myanmar Armed Forces) retain significant control of the government, even before their coup of 2021. 25% of seats in the Parliament of Myanmar were reserved for serving military officers. The ministries of home, border affairs and defense were headed by a serving military officer.[5][6] The military also appointed one of the country's two vice presidents.[7] Hence, the country's civilian leaders have little influence over the security establishment.[5][6]
Before independence, Myanmar had two quasi-constitutions, The government of Burma Act, 1935[8] and Constitution of Burma under Japanese occupation, 1943.[9] After independence, Myanmar adopted three constitutions in 1947,[10] 1974[11] and 2008.[12] The 2008 constitution is the present constitution of Myanmar.
Upon taking power in September 1988, the military, under the guise of the State Law and Order Restoration Council (SLORC) suspended the 1974 constitution.[21][22] The SLORC called a constitutional convention in 1993, but it was suspended in 1996 when the National League for Democracy (NLD) boycotted it, calling it undemocratic.[22] The constitutional convention was again called in 2004, but without the NLD.[22] Myanmar remained without a constitution until 2008.[22]
On 9 April 2008, the military government of Myanmar (Burma) released its proposed constitution for the country to be put to a vote in public referendum on 10 May 2008, as part of its roadmap to democracy. The constitution is hailed by the military as heralding a return to democracy, but the opposition sees it as a tool for continuing military control of the country.
At the time of its release, foreign media often incorrectly alleged that the constitution barred Aung San Suu Kyi from holding public office because of her marriage to a British citizen;[23] in fact, she would only be barred from the office of President, under the disqualification of those who have a spouse or children who are foreign citizens. There is no similar disqualification for any other public office.
The National League for Democracy, which is led by Aung San Suu Kyi, was not allowed to participate in the creation of the constitution,[29] and urged citizens to reject[30] the constitution which it labelled as a "sham." The referendum itself passed the 2008 Constitution,[31] but was generally regarded as fraudulent by the opposition party and those outside of Burma.[32]
The SPDC reported a heavy turnout on both dates, with few voting irregularities. Opposition groups say the turnout was comparatively light, with many reported cases of voting irregularities, such as premarked ballots, voter intimidation, and other techniques to influence the outcome of the referendum.[33]
In spite of its earlier opposition to the 2008 constitution, the NLD participated in the 2012 by-election for 46 seats and won a landslide victory, with Aung San Suu Kyi becoming a member of parliament, alongside 42 others from her party.
The ruling party and opposition parties have acknowledged that amendments are needed. The 2008 constitution reserves 25% of seats in parliament for members of the military, with the most powerful posts given to active-duty or retired generals.
The Myanmar Constitution has 15 chapters. Chapters 4, 5, and 6 concern the separation of powers between the legislature, judiciary, and executive. Due to over 50 years of military rule, the Constitution of Myanmar is dominated by the military, with 25% of the seats in both houses of the Assembly of the Union (Pyidaungsu Hluttaw) reserved for military representatives. Proposed changes to most parts of the constitution must be approved by more than 75% of both houses of the Assembly of the Union. For some others it must do so then go to a referendum. When the referendum is held, the changes must be approved by at least 50% of the registered voters, rather than 50% of those voting.[34] A 194-page booklet containing the text in Burmese and English is available to download.
On 1 February 2021, the Myanmar military staged a coup and unconstitutionally declared a national state of emergency, transferring all state powers to the commander-in-chief. The pretext for the coup was unproven allegations of electoral fraud in the 8 November 2020 general elections, which saw the governing NLD winning 79.5 per cent of the elected seats in the Union parliament, and most seats in the state and region assemblies.
However, this arrangement was not accepted by all stakeholders. Some ethnic groups considered that this federal arrangement did not fulfil the commitment for full autonomy in internal administration for the Frontier Areas agreed upon in the Panglong Agreement. In 1961, ethnic leaders held a series of conferences on federalism and submitted constitutional amendment proposals to parliament to provide greater autonomy to the states. Notably, proposals included rearranging the division of legislative powers between the Union level of government and the states, and restructuring the upper house of Union parliament so that each state would have equal (rather than proportional) representation. These discussions were put to a halt in March 1962, when the military under General Ne Win staged a coup, partly in reaction to concerns over aspirations for greater autonomy.
Following the March 1962 coup, General Ne Win established a Revolutionary Council, made up of military leaders who ruled by decree with no constitutional basis until 1974. Basic freedoms were severely restricted and political parties were outlawed. In September 1971, General Ne Win appointed a 97-member Constitution Drafting Commission tasked with preparing a new constitution, under the close supervision of the Revolutionary Council. The Revolutionary Council conducted a referendum in December 1973 to endorse the new constitution, approved by over 90 per cent of the voters in a process whose fairness was questioned by many in the country.5
The 1974 Constitution can be seen as an attempt to institutionalize military rule by transforming the regime from a military dictatorship to a consolidated one-party dictatorship. The resulting constitution was the opposite, in just about every respect, from its 1947 predecessor: the 1947 Constitution was bicameral, the 1974 unicameral; 1947 was a multiparty democracy, 1974 a one-party state; 1947 was an attempt to apply Westminster parliamentarism to a Myanmar context, 1974 was an adaptation of the Soviet-/Yugoslav-style constitution prevalent across the communist bloc in the Cold War era. Consequently, the Burma Socialist Programme Party became the only legally recognized political party dominating all the three branches of government.
The 1974 Constitution established a new territorial organization made up of seven states and seven divisions, and introduced the concept of formal equality between states and divisions. The seven divisions roughly covered the territories of what the British called Ministerial Burma (the Bamar-majority areas) and the seven states were broadly equivalent to the so-called Frontier Areas (the ethnic-majority areas). The states and divisions had limited power, as all legislative powers were exercised by the unicameral legislature at the central level.6 The judiciary was also subordinate to the party and no independent institutions were permitted.
All executive power was vested in a president who acted as head of state and head of the executive (Art. 16, 57 and 199(a)). The president and the two vice-presidents were elected by an electoral college consisting of all members of the bicameral Union parliament (Art. 60). The system for choosing the president and the two vice-presidents ensured that one of those offices was always held by the military. The president and the vice-presidents could only be removed by impeachment proceedings requiring a two-thirds majority vote of all members of one of the two chambers of parliament (Art. 71). The president was not accountable to parliament, and therefore could not be removed without cause.
The president had a five-year mandate, renewable once (Art. 61). The president determined the size and structure of the cabinet and appointed and dismissed ministers at will (Art. 202). But the president had to assign responsibilities for finance and budgetary processes to the two vice-presidents, one for the Union and the other for states and regions (Art. 230). The president had extensive appointment powers and chaired several important bodies. Two were of particular importance: the National Defense and Security Council and the Financial Commission for recommendations on the budgets of the union and states/regions.
Of note, Article 59 prohibited anyone with foreign nationality or relatives from running for president. This effectively excluded opposition leader Aung San Suu Kyi, whose children and deceased husband are British citizens. After the 2015 general elections, the newly governing NLD created, through legislation, a new position of State Counselor specific to Aung San Suu Kyi. The State Counselor was the de facto head of government, and the President became like a ceremonial head of state.9
There were legislative structures for the Union, States and Regions, and Self-Administered Zones or Divisions. Members elected into each of these legislative structures all had a five-year mandate. The bulk of legislative power (and residual powers) were granted to the Union-level legislature. States and Regions were given limited legislative responsibilities, but these notably included municipal affairs and thus allowed for variations in the management of local government. Ethnic Affairs ministers were directly elected in states/regions with significant minority populations, and were members of the legislature and cabinet of their respective state/region.
The Union legislature, known as the Pyidaungsu Hluttaw, was bicameral. One chamber represented the people and townships and was called the Pyithu Hluttaw and the other represented the states and regions and was called the Amyotha Hluttaw. Both chambers were elected at the same time for a five-year term. Disagreements over bills between the two chambers were resolved through a simple majority vote in a joint sitting.
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