The Drafting of the Constitution of the Union of Burma in 1947: Dominion Status, Indo–Burmese Relations, and the Irish Example
Keywords:
Burmese constitutional history, Burma, 1946–1948, United Kingdom, Dominion status, transitional government, constitution drafting,Abstract
This paper aims to consider four elements of Burmese constitutional history between 1946 and 1948. The first section considers the negotiations between Burma and the United Kingdom and argues that the debate about whether Burma wanted Dominion status has overlooked the crucial transitional government period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Indian Constituent Assembly in Delhi and Rangoon. The third section outlines the comparative influences on the Burmese Constitution using the digital humanities and illustrates that the biggest foreign influence was the Irish Constitution of 1937. The final section looks at the Burmese political leadership after World War II along two dimensions—at a nationalist level and at an elite level—and traces some of the links between Burma and Ireland.
References
1
See Taylor, Robert H., “Politics in Late Colonial Burma: The Case of U Saw,” Modern Asian Studies (1976): 161CrossRefGoogle Scholar for a background to the political scenario in Burma.
2
National Archives Department Myanmar, Office of the Prime Minister, Series AG 12/1, Acc No. 5, File IEC 45(5) “Memorandum for the Executive Council” (November 2, 1945).
3
D.G.E. Hall, A History of South-East Asia, 4th ed. (London: Macmillan, 1981), 882.
4
Burma's Fight for Freedom: Independence Commemoration (Rangoon: Information and Broadcasting Department, 1948) 49–50. These elements reappeared in Aung San's “seven points” resolution adopted by the Constituent Assembly on June 16; ibid. 92–93.
5
Hugh Tinker, ed., Burma: The Struggle for Independence 1944–1948 Volume I (London: Her Majesty's Stationery Office, 1983), 619.
6
Harshan Kumarasingham, ed., The Rise of Labour and the Fall of Empire: The Memoirs of William Hare, Fifth Earl of Listowel (Cambridge: Cambridge University Press, 2019), 145. Aung San had formed the first party cell of the Communist party in 1939; Robert H. Taylor, The State in Myanmar (London: Hurst, 2009), 240.
7
In 1945, Shan State had sought Dominion Status separately; see The 1947 Constitution and the Nationalities: Volume 2, 208–9.
8
See Oliver, Peter C., “’Dominion status’: History, Framework and Context,” International Journal of Constitutional Law 17 (2019): 1173CrossRefGoogle Scholar for a discussion of how the term evolved in the interwar period.
9
See Malagodi, Mara, McDonagh, Luke, and Poole, Thomas, “The Dominion Model of Transitional Constitutionalism,” International Journal of Constitutional Law 17 (2019): 1283CrossRefGoogle Scholar for a description of the post-World War II model to be found in South Asia, but not looking specifically at Burma.
10
Hugh Tinker, ed., Burma: The Struggle for Independence: Volume II (London: Her Majesty's Stationery Office, 1984), 262.
11
Ibid, 264.
12
Madzimbamuto v Lardner-Burke (1969) AC 645, 722–23.
13
British Coal Corporation v R (1935) AC 500, 520.
14
Aung San suggested that the interim government “had the powers of a Dominion government” in February 1947; Tinker, Burma, vol. II, 388.
15
The drafting process is covered most comprehensively in The 1947 Constitution and the Nationalities: Volume Two (Yangon: Universities Historical Research Centre and Innwa Publishing House, 1999), 51–196.
16
Tinker, Burma, vol. II, 183.
17
Robert H. Taylor, ed., Dr. Maung Maung: Gentleman, Scholar, Patriot (Singapore: Institute of Southeast Asian Studies, 2008), 112–13. The volume was compiled by Robert H. Taylor, but the biographical detail of Chan Htoon was by Maung Maung.
18
I am most grateful to the University College London registry for providing access to Htoon's academic transcript.
19
University of London: University College Calendar Session MXMXXVIII-MCMXXIX (London: Taylor and Francis, 1928), 237.
20
University of London: University College Calendar Session MXMXXIX-MCMXXX (London: Taylor and Francis, 1929), 241.
21
Donal K. Coffey, “Constitutional Law and Empire in Inter-War Britain: Universities, Liberty, Nationality, and Parliamentary Supremacy,” Northern Ireland Legal Quarterly 193 (2020): 196–97.
22
The 1947 Constitution and the Nationalities: Volume Two, 67.
23
Constitutional Precedents (Second Series): Selected Constitutions 1947. 3rd ed. (Delhi: Government of India Press, 1948). A copy may be found in National Archives of Myanmar: RG 12, Acc. No. 4/2(10) 15772.
24
Ibid, 113. In Ireland, the title for the Prime Minister is “Taoiseach.”
25
See Introduction by B.N. Rau.
26
See “Preface” in B. Shiva Rao, ed., Select Constitutions of the World (Madras: Madras Law Journal Press, 1934). On Rao's importance to constitutional history, see Elangovan, Arvind, “Constitutionalism as Discipline: Benegal Shiva Rao and the Forgotten Histories of the Indian Constitution,” South Asia: Journal of South Asian Studies 41 (2018): 605CrossRefGoogle Scholar. On the importance of Rao and Rau, see Kumarasingham, Harshan, “Written Differently: A Survey of Commonwealth Constitutional History in the Age of Decolonisation,” The Journal of Imperial and Commonwealth History 46 (2018): 874, 880–81CrossRefGoogle Scholar.
27
B. Shiva Rao, ed., The Framing of India's Constitution: Select Documents Volume II (New Delhi: The Indian Institute of Public Administration, 1967) 294–99. The draft may be traced to this report, rather than an earlier one, because certain phrases that occur in the Burmese Constitution are first present in this Indian draft; see, for example, explanation 2 to Article 20 in the Burmese Constitution.
28
Ibid, 147–50 which lists the influences.
29
See, ibid, 175–76.
30
Ibid, 778–85.
31
Constituent Assembly of India Debates (Proceedings) – Volume IV, 4.22.46.
32
“The Political Front,” The Burmese Review, September 1, 1947, 8.
33
“Customs Facilities – Sir B.N. Rau” (September 5, 1947), National Archives Department Myanmar, Series 15/3(17), Acc No 2. Soe Nyun's name is sometimes spelled “So Nyun.” I use the spelling printed on the document.
34
Ibid., U Zaw Win to P.W. Rathbone (September 11, 1947).
35
The 1947 Constitution and the Nationalities: Volume Two, 63–69, 225–60.
36
Tut, Tin, “The Burmese Constitution,” Pakistan Horizon 1 (1948): 43, 44Google Scholar.
37
F.S.V. Donnison, Burma (London: Ernest Benn, 1970), 141.
38
John F. Cady, A History of Modern Burma (Ithaca: Cornell University Press, 1958), 560.
39
J.S. Furnivall “Foreword,” in Maung Maung, Burma's Constitution, 2nd ed. (The Hague: Martinus Nijhoff, 1961), vii.
40
Ibid., Ix.
41
Ibid., x.
42
Ibid., xi.
43
On Furnivall, see Pham, Julie, “Ghost Hunting in Colonial Burma: Nostalgia, Paternalism and the Ghost of J.S. Furnivall,” South East Asia Research 12, no. 2 (2004): 237, 267CrossRefGoogle Scholar; and Pham, Julie, “J.S. Furnivall and Fabianism: Reinterpreting the ‘Plural Society’ in Burma,” Modern Asian Studies 39, no. 2 (2005): 321CrossRefGoogle Scholar.
44
See, for example, Čavoški, Jovan, “Overstepping the Balkan Boundaries: The Lesser Known History of Zugoslavia's Early Relations with Asian Countries (New Evidence from Yugoslav/Serbian Archives,” Cold War History 11 (2011): 557CrossRefGoogle Scholar, at 574 note 45.
45
Maitrii Aung-Thwin, “The Making of Myanmar's 1947 Constitution: Geography, Ethnicity, and Law,” in Constitutional Foundings in Southeast Asia, ed. Kevin Tan and Ngoc Son Bui (Oxford: Hart, 2019), 132.
46
Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Oxford: Hart, 2019), 18.
47
The provisions drawn on may be found in The Framing of India's Constitution: Select Documents Vol. II (New Delhi: Indian Institute of Public Administration, 1967). They were spread across a number of documents, but concerned the division of powers between the federal and state levels (778–85), justiciable fundamental rights (296–99), and non-justiciable fundamental rights taken from Part II (175–76). The powers provisions were identified manually at the end of the process and attributed on that basis.
48
U Saw v The Union of Burma (1948) Burma Law Reports 249, at 251. See also The Union of Burma/Nazir Hamed v Tan Yu Taik/The Union of Burma (1954) Burma Law Reports 4.
49
Htwe v Ohn (1948) Burma Law Reports 541, 553–54. See also Walla v Jeewa (1950) Burma Law Reports 72.
50
Taylor, Maung Maung, 248.
51
Donal K. Coffey, Constitutionalism in Ireland, 1932–1938: National, Commonwealth and International Perspectives (Cham: Palgrave MacMillan, 2018), 144–48.
52
Thant Myint-U, The River of Lost Footsteps: A Personal History of Burma (New York: Farrar, Straus and Giroux, 2006), 270.
53
“A Beard for Michael Collins,” The Burmese Review, March 15, 1948, 10.
54
“A Beard for Michael Collins,” The Burmese Review, March 22, 1948, 3. “Subbarayan” is spelled “Subbaraon” in the article.
55
“The Late U Tin Tut,” Burmese Review and Monday New Times, September 20, 1948, 4.
56
See J.A. Stewart, “Review of Burmese Drama,” Bulletin of the School of Oriental and African Studies 9 (1938): 792.
57
See the dedication to F.E. Moran in Burmese Law Tales: The Legal Element in Burmese Folk-lore (London: Oxford University Press, 1962).
58
Khin Yi, The Dobama Movement in Burma (1930–1938) (Ithaca: Cornell Southeast Asia Program, 1988), 44.
59
Ibid, 35.
60
Ibid., 92.
61
Thant Myint-U, The River of Lost Footsteps, 203–4, 212–13.
62
Ba Maw, Breakthrough in Burma: Memoirs of a Revolution, 1939–1946 (New Haven: Yale University Press, 1968) 53–54.
63
Aung San also tapped into the parliamentary Irish tradition, memorizing the speeches of Edmund Burke; see Thant Myint-U, The River of Lost Footsteps, 213.
64
See Michael Aung-Thwin and Maitrii Aung-Thwin, A History of Myanmar since Ancient Times: Traditions and Transformations (London: Reaktion Books, 2012), 228–29.
65
Taylor, ed., Maung Maung, 113–14.
66
See Hans-Bernd Zöllner, ed., “The Nagani Book Club—An Introduction,” Working Paper No. 10:1 Passuer Beiträge zur Südostasienkunde, accessed November 15, 2022, https://www.burmalibrary.org/docs11/mlp10.01-op.pdf
67
See Hans-Bernd Zöllner, ed., “Material on Eight Books on Ireland,” Working Paper No. 10:20 Passuer Beiträge zur Südostasienkunde, accessed November 15, 2022, https://www.zoellner-online.org/myanmar-birma/das-myanmar-literature-projekt/20/
68
This period was based on the holdings of the British Library. Some issues are missing, but the vast majority are available.
69
See “The Political Front,” The Burmese Review, October 20, 1947, 8. This was not a new moniker; U Ba Si had used the term in arguing for a constitution like that of the Irish Free State at the Burmese Round Table Conference in 1931; “Burma Delegates State Desires,” The Irish Times, December 4, 1931, 7.
70
“The Idea of a National University,” The Burmese Review, October 20, 1947, 1.
71
“The Fall of de Valera,” The Burmese Review, February 23, 1948, 1.
72
“John Aloysius Costello,” The Burmese Review, April 12, 1948, 4.
73
“De Valera Bangs the Drum,” The Burmese Review, May 17, 1948, 6.
74
“Sympathy from the Irish People,” The Burmese Review, July 28, 1947, 1.
75
Ibid., 10.
76
“The Constitution of Ireland,” The Burmese Review, March 3, 1937, 3.
77
On the early jurisprudence of the court see Zan, Myint, “A Comparison of the First and Fiftieth Year of Independent Burma's Law Reports” Victoria University of Wellington Law Review 35 (2004): 386CrossRefGoogle Scholar.
78
National Archives of Ireland, Taois s 14160.
79
Tinsa Maw Naing v The Commissioner of Police, Rangoon (1950) Burma Law Reports 17. The case was followed in Hwat v The Secretary, Ministry of Home Affairs (1960) Burma Law Reports 128.
80
In the Matter of the Offences Against the State (Amendment) Bill 1940 (1940) Irish Reports 470. For the background to the case, see Hogan, Gerard, “The Supreme Court and the Reference of the Offences Against the State (Amendment) Bill 1940,” Irish Jurist 35 (2000): 23Google Scholar8.
81
Tinsa Maw Naing v The Commissioner of Police, Rangoon (1950) Burma Law Reports 17, 32–34. The “judicial power” argument was not considered in the Irish case.
82
Ibid., 32.
83
(1940) Irish Reports 470 at 475.
84
See Hogan, “The Supreme Court,” 272–73.
85
This was as part of the omnibus Second Amendment of the Constitution in 1941.
86
See B. Shiva Rao, ed., Indian's Constitution in the Making by B.N. Rau (Calcutta: Orient Longmans, 1960), 308–11.
87
Sections 157(2), 170(2), and 186(2).
88
Rex v Halliday (1917) AC 260, Liversidge v Anderson (1942) AC 206, The Federal Commissioner of Taxation v Munro (1926) 38 Commonwealth Law Reports 153.
89
Lieberman, Victor B., “Ethnic Politics in Eighteenth-Century Burma,” Modern Asian Studies 12, no. 3 (1978): 455, 482CrossRefGoogle Scholar.
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Cheesman, Nick, “Seeing ‘Karen’ in the Union of Myanmar,” Asian Ethnicity 3, no. 2 (2002): 199CrossRefGoogle Scholar; and Walton, Matthew, “Ethnicity, Conflict and History in Burma: The Myths of Panglong,” Asian Survey 48, no. 6 (2008): 889CrossRefGoogle Scholar.
91
A recent example of constitutionalism from below is Rohit De's magisterial, A People's Constitution: The Everyday Life of Law in the Indian Republic (Princeton: Princeton University Press, 2018).
