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Constitution of Myanmar

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Constitution of the Republic of the
Union of Myanmar
(2008)
Created9 April 2008
Ratified29 May 2008
Date effective31 January 2011
PurposeTo replace the 1974 Constitution of the Socialist Republic of the Union of Burma
Politics of Myanmar
Constitution
Government
Legislature (dissolved)
Judiciary
Recent elections
Administrative divisions
Foreign relations
Exiled government
Related topics
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The Constitution of the Republic of the Union of Myanmar (Burmese: ပြည်ထောင်စုသမ္မတမြန်မာနိုင်ငံတော် ဖွဲ့စည်းပုံအခြေခံဥပဒေ) is the supreme law of Myanmar. Myanmar's first constitution adopted by constituent assembly was enacted for the Union of Burma in 1947.[1] After the 1962 Burmese coup d'état, a second constitution was enacted in 1974. The country has been ruled by military juntas for most of its history.

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]

History

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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.

1947 constitution

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The 1947 constitution, officially the Constitution of the Union of Burma (ပြည်ထောင်စုမြန်မာနိုင်ငံတော် ဖွဲ့စည်းအုပ်ချုပ်ပုံအခြေခံဥပဒေ), was drafted and approved by the Constituent Assembly of Burma in 1947,[13] and was used from the country's independence in 1948 until the military seizure of power during the 1962 military coup.[14] This constitution was developed in consultation with different ethnic groups including the Chin, Kachin, and Shan people. In return, these groups were to receive full autonomy in internal matters. The constitution also granted the right for ethnic states to secede from the new Union of Burma if so desired after ten years following independence in 1948.[14] The national government consisted of three branches: judicial, legislative and executive. The legislative branch was a bicameral legislature called the Union Parliament, consisting of two chambers, the 125-seat Chamber of Nationalities (လူမျိုးစုလွှတ်တော် Lumyozu Hluttaw) and the Chamber of Deputies (ပြည်သူ့လွှတ်တော် Pyithu Hluttaw), whose seat numbers were determined by the population size of respective constituencies.[15][16] The 1947 constitution was largely based on the 1946 Yugoslav Constitution, as several Burmese officials visited Yugoslavia earlier that year.[17] Just as Yugoslavia at that time was a federation, so was Burma under the 1947 constitution. Despite this, the country was governed like a unitary state, and not a federation, in practice.[18] Other influences of the socialist Yugoslav constitution were the sections establishing a welfare state and codifying a heavily centralised government.[14]

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The 1947 constitution was suspended when the Myanmar military seized power and formed the Revolutionary Council of the Union of Burma, led by general Ne Win.[14]

1974 constitution

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The 1974 constitution, officially the Constitution of the Socialist Republic of the Union of Burma (ပြည်ထောင်စုဆိုရှယ်လစ်သမ္မတမြန်မာနိုင်ငံတော် ဖွဲ့စည်းပုံအခြေခံဥပဒေ), was the second constitution to be written, was approved in a 1973 referendum, and was adopted on 3 January 1974. It created a unicameral legislature called the People's Assembly (Pyithu Hluttaw), represented by members of the Burma Socialist Programme Party (BSPP) as the only legal party.[19] Each term was 4 years.[16] Ne Win became the president at this time.

According to David I. Steinberg, this constitution was modelled after the constitutions of the Eastern Bloc.[20]: 210  Gone was the language of federation found in the 1947 constitution. In its place, the 1974 constitution codified a unitary, centralized state, under the complete control of the military, through the BSPP. "Even the modest autonomy previously granted the minorities was rescinded. The periphery was without effective voice. Although 'elected' representatives were obligated to return to their constituencies to learn the problems of their electorate, the system did not work, as fear fear prevented criticism of the military hierarchy and its policies and programs."[20]: 211 

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1988–2008

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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] In 1990 they issued a declaration that a new constitution should be drawn up. However, many viewed their abuse of the constitution-making process as simply a delaying tactic to remain in power.[14]: 398  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]

2008 constitution

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Main article: 2008 Constitution of Myanmar
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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.

The legislative branch is the Assembly of the Union (ပြည်ထောင်စုလွှတ်တော်) Pyidaungsu Hluttaw, which is a bicameral legislature consisting of the 440-seat House of Representatives and the 224-seat House of Nationalities. Military (Tatmadaw) member delegates are reserved a maximum of 56 of 224 seats in the National Assembly and 110 seats of 440 in the People's Assembly.[23] This is similar to former Indonesian and Thai constitution.[citation needed]

The revisions in state structure, including the creation of self-administering areas were not implemented until August 2010.[24] The constitution itself came into force on 31 January 2011.[4]

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.

2008 constitutional referendum

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Further information: 2008 Myanmar constitutional referendum

On 10 May 2008[25] a referendum was held to outline the political framework of the country. According to Chief Justice Aung Toe, chairman of the drafting commission,

In drafting the constitution, the commission adhered strictly to the six objectives, including giving the Tatmadaw (the military) the leading political role in the future state.[26]

The government did not allow Cyclone Nargis to delay the referendum which took place as scheduled except in the delta areas affected by the cyclone.[27][28]

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]

2012 by-elections

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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.

Amending process

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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.

Content of Constitution

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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.

Type of content

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  • Preamble
  1. Basic Principles of the Union
  2. State Structure
  3. Head of State
  4. Legislature
  5. Executive
  6. Judiciary
  7. Defence Services
  8. Citizen, Fundamental Rights and Duties of the Citizens
  9. Election
  10. Political Parties
  11. Provisions on State of Emergency
  12. Amendment of the Constitution
  13. State Flag, State Seal, National Anthem and the Capital
  14. Transitory Provisions
  15. General Provisions

References

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  1. ^ "Constitution of 1947 - Myanmar Law Library". www.myanmar-law-library.org (in French). Archived from the original on 20 October 2018. Retrieved 20 October 2018.
  2. ^ "Constitution of the Republic of the Union of Myanmar (2008)" Archived 16 August 2019 at the Wayback Machine full text in English from Burma Library, last accessed 5 October 2010
  3. ^ "Online Burma Library > Main Library > Law and Constitution > Constitutional and parliamentary processes > National constitutions, draft constitutions, amendments and announcements (texts)". Burmalibrary.org. Archived from the original on 19 March 2021. Retrieved 16 January 2018.
  4. ^ a b "၂၀၀၈ ဖွဲ့စည်းပုံအခြေခံဥပဒေ" [2008 Constitution]. Constitutional Tribunal of the Union of Myanmar (in Burmese). March 2018. Archived from the original on 22 April 2022. ဖွဲ့စည်းပုံအခြေခံဥပဒေပြဋ္ဌာန်းချက်များနှင့်အညီ ၂၀၀၈ ဖွဲ့စည်းပုံအခြေခံဥပဒေသည် ပထမအကြိမ် ပြည်ထောင်စုလွှတ်တော်စတင်ကျင်းပသည့် ၃၁-၁-၂၀၁၁ ရက်နေ့တွင် စတင်အာဏာတည်ခဲ့သည်။
  5. ^ a b "Why is army still in Myanmar parliament?". BBC News. Archived from the original on 28 October 2017. Retrieved 16 January 2018.
  6. ^ a b Phil Robertson (12 November 2015). "Can Aung San Suu Kyi control Myanmar's military?". CNN. Archived from the original on 4 March 2018. Retrieved 16 January 2018.
  7. ^ "Managing the defence and security council". Mmtimes.com. 28 March 2016. Archived from the original on 13 September 2017. Retrieved 16 January 2018.
  8. ^ "Government of Burma Act, 1935 - Myanmar Law Library". www.myanmar-law-library.org (in French). Archived from the original on 20 October 2018. Retrieved 20 October 2018.
  9. ^ "Constitution of 1943 (under Japanese occupation) - Myanmar Law Library". www.myanmar-law-library.org (in French). Archived from the original on 20 October 2018. Retrieved 20 October 2018.
  10. ^ "Constitution of 1947 - Myanmar Law Library". www.myanmar-law-library.org (in French). Archived from the original on 20 October 2018. Retrieved 20 October 2018.
  11. ^ "Constitution of 1974 - Myanmar Law Library". www.myanmar-law-library.org (in French). Archived from the original on 20 October 2018. Retrieved 20 October 2018.
  12. ^ "Constitution of 2008 - Myanmar Law Library". www.myanmar-law-library.org (in French). Archived from the original on 20 October 2018. Retrieved 20 October 2018.
  13. ^ Constituent Assembly of Burma (1948). THE CONSTITUTION OF THE UNION OF BURMA. Published by Supdt., Govt. Printing and Stantionery Burma, Rangoon. Archived from the original on 15 March 2022. Retrieved 15 March 2022.
  14. ^ a b c d e Diller, Janelle M. (1 April 1993). "Constitutional Reform in a Repressive State: The Case of Burma". Asian Survey. 33 (4): 393–407. doi:10.2307/2645105. ISSN 0004-4687. JSTOR 2645105.
  15. ^ The Constitution of the Union of Burma Archived 30 June 2015 at the Wayback Machine (1947), Chapter VI: Parliament
  16. ^ a b "TIMELINE - Myanmar's slow road to a new constitution". Reuters. 9 February 2008. Archived from the original on 4 June 2012.
  17. ^ DASMIP, PA, 1947, f-124, 425154, Zabeleska o razgovoru druga Price sa predstavnikom burmanske vlade Maung Ohn, dana 5 decembra 1947 godine [Minutes of conversation between comrade Prica and the representative of the Burmese Government Maung Ohn, December 5th 1947]. F. S. V. Donnison, Burma (London: Ernest Benn Limited, 1970), p. 141.
  18. ^ "Chronology of Burma's Constitutional Process" (PDF). Human Rights Watch. 2008.
  19. ^ The Constitution of the Socialist Republic of the Union of Burma Archived 27 July 2011 at the Wayback Machine (1974), Chapter IV: Pyithu Hluttaw
  20. ^ a b Steinberg, David I. (2006). "Burma-Myanmar: The U.S.-Burmese Relationship and Its Vicissitudes". In Birdsall, Nancy; Vaishnav, Milan; Ayres, Robert L. (eds.). Short of the goal : U.S. policy and poorly performing states (PDF). Washington D. C.: Center for Global Development. pp. 209–244. ISBN 9781933286051.
  21. ^ Liddell, Zunetta (1997) "No Room to Move: Legal Constraints on Civil Society in Burma" (conference paper) 'Strengthening Civil Society in Burma. Possibilities and Dilemmas for International NGOs', Transnational Institute and the Burma Centrum Nederland, Royal Tropical Institute in Amsterdam, from Burma Library, last accessed 5 October 2010
  22. ^ a b c d Mydans, Seth (4 September 2007) "Myanmar Constitution Guidelines Ensure Military Power" Archived 24 August 2017 at the Wayback Machine The New York Times, last accessed 5 October 2010
  23. ^ a b "New Burma constitution published". BBC News. 9 April 2008. Archived from the original on 21 April 2021. Retrieved 10 May 2008.
  24. ^ Xinhua Staff(21 August 2010) "Myanmar re-designates areas under new constitution ahead of election" Archived 28 May 2013 at the Wayback Machine People's Daily Online, last accessed 5 October 2010
  25. ^ Ossenova, Katerina (9 April 2008) "Paper Chase Newsburst: Myanmar constitution referendum set for May 10" Archived 11 April 2008 at the Wayback Machine Jurist: Legal News and Research, last accessed 5 October 2010
  26. ^ "New Myanmar constitution gives military leading role". Reuters. 19 February 2008. Archived from the original on 18 January 2021. Retrieved 2 July 2017.
  27. ^ "Burma referendum goes ahead". BBC News. 10 May 2008. Archived from the original on 11 May 2011. Retrieved 30 April 2010.
  28. ^ "Burmese voice anger on poll day". BBC News. 10 May 2008. Archived from the original on 14 April 2010. Retrieved 30 April 2010.
  29. ^ "Dissidents line up to fight Myanmar constitution". Reuters.com. 11 February 2008. Archived from the original on 17 January 2018. Retrieved 16 January 2018.
  30. ^ "JURIST - Paper Chase: Upcoming Myanmar constitutional referendum 'sham': HRW". Jurist.law.pitt.edu. Archived from the original on 7 January 2014. Retrieved 16 January 2018.
  31. ^ "Myanmar Announcement No. 7/2008" (PDF). Burmalibrary.org. Archived (PDF) from the original on 3 March 2016. Retrieved 16 January 2018.
  32. ^ Martin, Michael F. (29 April 2010) ["Burma’s 2010 Elections: Implications of the New Constitution and Election Laws"] United States Congressional Research Service, Library of Congress, last accessed 5 October 2010
  33. ^ Martin, Michael F. (29 April 2010) ["Burma’s 2010 Elections: Implications of the New Constitution and Election Laws"] United States Congressional Research Service, Library of Congress, page 4, citing Watson, Roland (26 March 2010) "Intelligence from Burma Police Defector" Archived 26 September 2010 at the Wayback Machine Dictator Watch
  34. ^ No Constitutional Amendments Before Election: Shwe Mann Archived 30 December 2014 at the Wayback Machine The Irrawaddy, 18 November 2014
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