By Aman Ullah
“If Burma receives one kyat, you will also receive one kyat.” Aung San February 12, 1947
On 12 February 1947, the Union of Burma was founded at Panglong by four former British colonies, namely the Chin, Kachin, Federated Shan States and Burma Proper, all of which already had their own constitutions. The British occupied these four colonies separately as independent countries in different periods of time, and applied different administrative systems in accordance with the different constitutions that the colonial power had promulgated for them. The British officially promulgated the Chin Constitution, called the “Chin Hills Regulation,” in 1896, the “Kachin Hills Regulation” in 1895, the “1919 Act of Federated Shan States” in 1920, and the “1935 Burma Act” in 1937. The Chin Hills Regulation of 1896 covered present Chin State in Burma, present Mizoram State, Nagaland State, and part of Manipur and Meghalaya States in India. The 1935 Burma Act was applied to the area of the pre-colonial Myanmar/Burman Kingdom, which included the former Arakan and Mon Kingdoms as well as delta areas of Karen country.
At the Panglong Conference in 1947, the Chin, Kachin, Shan and other non-Burman nationalities were promised the right to exercise political authority (in the form of administrative, judicial and legislative powers in their own autonomous national states) and to preserve and protect their language, culture and religion, in exchange for voluntarily joining the Burmans in forming a political union and giving their loyalty to a new state.
On the basis of the Panglong Agreement, the Union Constitution was framed. Aung San himself drafted the Union Constitution and submitted it to the AFPFL convention held in May 1947, at the Jubilee Hall in Rangoon. Aung San delivered a long speech at the convention and explained the essence of the Panglong Agreement, which had the aim of establishing a Federal Union. He also argued:
“When we build our new Burma, shall we build it as a Union or as a Unitary State? In my opinion it will not be feasible to set up a Unitary State. We must set up a Union with properly regulated provisions to safeguard the rights of the national minorities.”
Aung San also insisted on the right of self-determination for ethnic nationalities who signed the Panglong Agreement to found a new Federal Union with so-called Burma Proper. He referred to his co-signatories, the Chin, Kachin and Shan, as nations, or pyidaung in Burmese. He said:
“The right of self-determination means that a nation can arrange its life according to its will. It has the right to arrange its life on the basis of autonomy. It has the right to enter into federal relation with other nations. It has the right to complete secession.”
Moreover, Aung San clarified the nature of ethnic and cultural minority rights and their implications, an issue which many of his contemporaries regarded as problematic:
“What is it that particularly agitates a national minority? A minority is discontented because it does not enjoy the right to use its native language. Permit it to use its native language and this discontentment will pass of itself. A minority is discontented because it does not enjoy liberty of conscience etc. Give it these liberties and it will cease to be discontented. Thus, national equality in all forms (language, schools, etc.) is an essential element in the solution of the national problem [or, ethnic conflict?]. A state law based on complete democracy in the country is required, prohibiting all national privileges without exception Designing Federalism in Burma and all kinds of disabilities and restrictions on the rights of national minorities.”
On the basis of the principles of equality, the right of self-determination, and constitutional protection of ethnic and cultural minority groups, Aung San drafted a new constitution for a new Union of Burma, which was duly approved by the AFPFL convention. According to Aung San’s version of the constitution, the Union would be composed of National States, or what he called “Union States,” such as the Chin, Kachin, Karen, Karenni (Kayah), Mon, Myanmar (Burman), Rakhine (Arakan) and Shan States. The “original idea,” as Dr Maung Maung points out, “was that the Union States should have their own separate constitutions, their own organs of state, viz Parliament, Government and Judiciary.”
The Chapter I of Aung San’s Constitution is as follow:-
THE BURMA UNION AND ITS UNITS
1. Burma should be Proclaimed as an ‘Independent Sovereign Republic.’
2. The said Independent Sovereign Republic of Burma shall comprise: –
A. Such territories that were heretofore within the British Burma known as: –
i. Ministerial Burma,
ii. Homalin Sub-Division,
iii. Sinkaling Khamti,
v. Somra Tract,
vi. Naga Hills,
vii. Salween District,
viii. Kanpetlet Sub-Division, and
ix. Arakan Hill Tracts.
B. The Federated Shan States (including Kokang and Mongpai).
C. Karenni States
D. Kachin Hills, and
E. Chin Hills District (excluding Kanpetlet Sub-Division)-
2. The said Independent Sovereign Republic of Burma should be known as the ‘Union of Burma.’
1) The status of a Union State should 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 Burmese;
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.
2) The status of an ‘Autonomous State’ should be accorded to a people who more or less possess the above-mentioned characteristics but lack in economic self-sufficiency.
3) The status of a ‘National Area’ should be accorded to a people who are lacking in all the above-mentioned characteristics except more or less a distinct language, a territory on which it is concentrated in appreciable numbers and the desire to maintain its distinct identity.
4) The rights of National Minority should be guaranteed to a group of persons who –
(i) Differ from the Burmese in race, language, culture and historical traditions,
(ii) (ii) form at least one-tenth of the total population of Burma or of any Unit.
4. The jurisdiction of the Union, as represented by its highest organs of state authority and organs of Government, covers the following subjects: –
1) Constitutional Affairs.
2) Foreign Affairs.
4) Foreign Trade.
5) Federal Finance.
6) National Planning.
8) Transport and Communications.
9) Federal Education.
10) Federal Health.
5. All power and authority of the Sovereign Independent Republic of Burma, its constituent parts and organs of Government, are derived from the people.
Chapter 7 as follow: –
THE UNION STATE
1. The Union State shall have its own constitution in conformity with the constitution of the Union and its own specific characteristics and features.
2. It is suggested that the Head of the Union State may be called the GOVERNOR who should be elected by the State Legislature.
3. In the Union State the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated: –
(1)Constitutional Affairs: –
i. The amendment from time to time of the Constitution of the Union State subject to this Constitution;
ii. The conduct of elections to the Union State Legislature and other local bodies;
iii. The establishment and tenure of Union State officers and the appointment and payment of State officers.
(2) Finance: –
i. Direct taxation within the Union State, other than federal taxes and revenue, in order to the raising of a revenue, for Union State purposes;
ii. Land Revenue;
iii. Minor minerals as defined in Chapter VIII of the Shan States Manual;
iv. Timber other than exportable timber;
v. Taxes on luxuries and entertainments;
vi. Sale tax;
vii. Taxes on professions, trade, callings and employment;
viii. Excise duties on alcoholic liquors and narcotic drugs;
ix. Shop, saloon, tavern, auctioneer and other licenses in order to the raising of a revenue for State, localor Municipal purposes.
(3)Economic Affairs: –
i. Agriculture and Veterinary;
ii. Fisheries within the State,
iii. Regulation of land tenures;
iv. Internal trade and commerce;
v. Water Supp lies and Irrigations;
vi. Unemployment and Relief of the poor.
i. Police Administration:
ii. Administration of justice by Courts subordinate to High Court:
iii. The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the Union State made in relation to any matter coming within any of the classes of subjects enumerated in this section.
(5)Communications: – Local works and undertakings within the State other than Railways, subject to the power of the Union Assembly to declare any work a national work and to provide for its construction and by arrangement with the State legislature or otherwise.
i. Education, other than higher education;
ii. Management and control of all educational institutions;
iii. Non-federal libraries, museums and other institutions;
iv. Theatres, dramatic performances and cinemas.
(7) Health: –
i. Public health and sanitation;
ii. The establishment, maintenance and management of hospitals, asylums and dispensaries.
(8) Local Government: –
(i) Municipalities and other local bodies;
(ii) Charities and charitable institutions.
(The full text of Aung San Constitution can be read in ‘Burma’s Constitution’ by Maung Maung, Martinus Nijhoff, The Hague, 1961, Appendix IV.)
Unfortunately Aung San was assassinated by U Saw on July 19, 1947. He was succeeded by U Nu as a leader of AFPFL. U Nu gave an order to U Chan Htun to re-draft U Aung San’s version of Union Constitution, which had already been approved by the AFPFL Convention in May 1947. U Chan Htun’s version of the Union Constitution was promulgated by the Constituent Assembly of the interim government of Burma in September 1947.
According to U Chan Htun’s version of the Union Constitution, Burma Proper did not form their own separate National State; instead they combined the power of the Burman National State with the whole sovereign authority of the Union of Burma. Thus the Burman became the dominion group who controlled the sovereign power of the Union, that is, the legislative, judicial and administrative powers of the Union of Burma, the other ethnic nationalities who formed their own respective National States became almost like “vassal states” of the ethnic Burman bloc. This constitutional arrangement was totally unacceptable to the Chin, Kachin and Shan who signed the Panglong Agreement on the basis of the principle of national equality, and also to other nationalities.
Another serious flaw in the 1947 Constitution was the absence of state constitutions for all the member states of the Union. In contrast to the original agreement, according to which Aung San and Chin, Kachin and Shan leaders intended to establish a separate state constitution for each and every state, U Chan Htun’s version of the Union Constitution incorporated clauses covering all the affairs of the states. In this way, state affairs became part and parcel of the Union Constitution, with no separate constitutions for the Chin, Kachin, Shan and other ethnic nationalities. Such a constitutional arrangement indicated that whatever powers the governments of states enjoyed and exercised under the 1947 Constitution were given to them by the central government, characteristic of a unitary state system. In a unitary system, power lies in the hands of the central government, and the powers of local governing or administrative units derive from or are devolved to them by the central government. Burman became dominated group not only in Chamber of Deputies (the lower house) but also in the Chamber of Nationalities (Upper house).
Thus, the fate of the country and the people, especially the fate of non-Burman nationalities, changed dramatically between July and September 1947. As a consequence, Burma did not become a genuine federal union, as U Chan Htun himself admitted to historian Hugh Tinker. He said, “Our country, though in theory federal, is in practice unitary.”
Hence, all the non-Burman nationalities viewed the Union Constitution itself as an instrument for imposing a tyranny of the majority and not as their protector, and it was this perception that led Burma into fifty years of civil war.