Book Review: Maung Maung's Burmese Constitution

Citation: Maung Maung, Burma's Constitution (1962)

Last year, Burma adopted a new constitution, one which critics claim will keep the military in power for decades to come. This is the first constitution since the prodemocracy protests in 1988. However, once upon a time, Burma's constitution was taken seriously and actually allowed for the stirrings of the rule of law. The country's 1947 Constitution is often, if simplistically, viewed as a sort of golden age for Burmese constitutionalism. Dr. Maung Maung's Burma's Constitution, already almost 50 years old, is still the only comprehensive piece of legal scholarship we have of this constitution, and thus is an important book for any Burma scholar or student of Asian law.
Dr. Maung Maung wrote this book before, in the words of one Burma scholar, he "whored" himself to General Ne Win. Thus, in this book he is full of enthusiasm for Burma's nascent democracy and the 1947 Constitution. He goes to great lengths to demonstrate that the constitution embodied liberal democratic norms. He approvingly cites the Supreme Court in proclaiming that the constitution should be interpreted in a "liberal and comprehensive spirit." Given Dr. Maung Maung's later historical importance, this book provides an interesting, and perhaps unfiltered, insight into his thoughts.

The first 90 pages of Burma's Constitution summarizes Burma's colonial history and the nationalist movements. Dr. Maung Maung goes into more detail than most modern histories of Burma and provides some interesting nuance lost in later accounts. If you are familiar with Burmese history, this section may be superfluous. Nonetheless, it provides context for the rest of the book.

The second half of the book is the real meat of Burma's Constitution. Each chapter is organized by subject, with particular attention paid to the executive, legislature, judiciary, and ethnic minority sections of the 1947 Constitution. Dr. Maung Maung discusses the constitution in detail, not only summarizing the text but describing the debates during the drafting and mentioning any relevant Supreme Court opinions. As a keen political observer, he describes the negotiations and dealmaking that resulted in the constitutional compromises embodied in the 1947 document. For example, it is fascinating to see the reasoning behind the Constituent Assembly's rejection of a full federal system. Apparently, Attorney General Chan Htoo, a respected lawyer, expressed his concern that a federal government would require more personnel and funds than the country could afford. That decision may have had disastrous consequences and contributed to the tensions between Burmans and ethnic minorities.

As one might expect given his legal background, Dr. Maung Maung's analysis of the judiciary is quite insightful. He cites several cases in which the Supreme Court struck down the president's actions or freed a person who had been illegally detained. His pride in the court shines through the pages. However, he also comments on the court's institutional strengths and weaknesses. In particular, I found it interesting that Supreme Court justices were considered a part of Burma's political elite and often represented the country on international missions. By contrast, Indonesia's judges were maligned or scorned since that country's independence. Unfortunately, Burma's courts have moved in the direction of Indonesia's rather than the other way around.

While Thant Myint-U is correct that the 1950s weren't a mythical golden age, the 1947 is nonetheless a fascinating document. Dr. Maung Maung had the peculiar misfortune to write this in-depth treatise right as General Ne Win launched his coup in 1962, making it immediately obsolete. Despite that technicality, Burma's Constitution still has much historical value. This is an outdated, but not obsolete book. It shows what Burma's legal system was, and could have been, during a unique point in its history.

With that said, I was disappointed that Maung Maung didn't take the opportunity in Burma's Constitution to discuss the 1947 Constituent Assembly and Constitution Committee in more detail. He recounts a few relevant anecdotes in each chapter, but never really explains the entire process. Since Maung Maung's book, already 50 years old, very little has been written about Burmese constitutions. Maung Maung had unique access and insights into the drafters of the 1947 Constitution and could probably have told the story in a way that is impossible now. It is, and will likely remain, a lost opportunity.

This book is worth reading solely for its historical value, but it also provides insights into Burma's 2008 Constitution. Before his death in 1994, Dr. Maung Maung was allegedly deeply involved with drafting the National Convention's Basic Principles. Not surprisingly, the 2008 Constitution shares several features with the 1947 Constitution - a bicameral legislature, quasi-federal structure, list of qualifications for officeholders, to name a few. I also noticed that the 1947 Constitution gives the president the right to ask the Supreme Court to review the constitutionality of laws passed in the ethnic minority states - the very same power given to the Constitutional Tribunal under the new constitution. Obviously, the military's 2008 Constitution is a very different animal, but the amount of similarity is instructive. I am anxious to see whether the Constitutional Tribunal will use case law developed during the 1950s, or start anew.

The appendices of Burma's Constitution contains a copy of the 1947 Constitution, as well as several amendments and related laws.

Robert Taylor has recently compiled some of Maung Maung's other writings on the constitution in Dr Maung Maung: Gentleman, Scholar, Patriot. It's an expensive volume, but, like Burma's Constitution, a unique kind book full of primary documents.

Maung Maung also wrote Law and custom in Burma and the Burmese Family and A Trial in Burma, which are interesting but probably not as critical to understanding Burma as Burma's Constitution.