Burma was the first country to peacefully secede from the British Empire. In January 1947, Aung San, leader of the Anti-Fascist People's Freedom League (AFPFL), successfully concluded an agreement with Clement Atlee that left the shape of a new Burmese Constitution to be determined by a Constituent Assembly. Crucially, the question of whether or not Burma was to remain within the Commonwealth was left to the Constituent Assembly itself, with the British preference being for Burma to establish itself as a self-governing dominion within the Commonwealth and Empire. The drafting process occurred at an interesting inflection point in global constitutional history: a time when the post-Second World War constitutions and international human rights documents had largely not been drafted, while vast swathes of the planet were still governed under colonial constitutions. At a regional level, the Burmese experience of incorporation as part of the British Raj until the 1930s meant that its colonial experience had been part of a larger South Asian experience until a decade before the drafting exercise began.
This article aims to consider four elements of Burmese constitutional history at the time. 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 period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Constituent Assemblies 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 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.
The Path to Independence
The provisions governing Burma in 1947 were broadly those under the Government of Burma Act 1935, subject to a proclamation issued under section 139, which provided for rule by the governor for a period of 3 years if there was a failure of constitutional governance, on December 10, 1942. This had been interrupted by the Japanese Occupation, which included a new, relatively svelte constitution promulgated on August 1, 1943. British rule was resumed during World War II and the provisions of section 139 were extended by the Government of Burma (Temporary Provisions) Act 1945, which allowed the 1942 Proclamation to run until December 9, 1948 unless it was revoked.Footnote 1
In 1945, with the end of World War II, thoughts turned to the form of a new constitution in Burma. U Tin Tut, then a reconstruction adviser, advocated preparatory work on the study of foreign constitutions, those of the dominions, some foreign countries like the United States and Switzerland, collection of the views of civil society, and finally, a tentative first draft to be given to the body responsible for formulating a constitution.Footnote 2 Between 1945 and 1946 Burma was roiled by political conflicts between the AFPFL and the governor, with the former demanding a pathway to independence and the latter eventually ceding control of the Executive Council to the AFPFL, who were determined to draft a new constitution, in late 1946. The AFPFL immediately asked for a guarantee of independence within 1 year, along with control of the machinery of government during the transitional period. Negotiations between the AFPFL and British government were eventually concluded by the Aung-San Atlee agreement in January 1947.
The question of dominion status and whether Burma should have sought independence via this route as India, Ceylon, and Pakistan did, used to exercise scholars. In 1947, dominion status meant that Burma would have remained within the British Empire and would have retained a link to the British crown. D.G.E. Hall, for instance, argued that had Aung San lived, he would have wanted to conclude an agreement that would have kept Burma in the Commonwealth.Footnote 3 This view appears to be unsustainable; the question of dominion status was disposed of by the determination of the AFPFL Convention on May 23 that Burma was to be an “Independent Sovereign Republic,” where all powers and authority “derived from the people.”Footnote 4 This stance wasn't a deviation for the AFPFL; they had resolved at their congress in January 1946 to reject dominion status “or any other status within the framework of British imperialism.”Footnote 5 On the question of the crown, Aung San declared that it was necessary to remove the crown in order to prevent the AFPFL from fracturing and giving the communists a stick to beat them with, but that he personally did not have objections to the crown.Footnote 6 This may have been an accurate summation of his views, or he may have simply trying to assuage slightly British questioning of his motives, but it was clear that he would not break the AFPFL stance on this. By May 1947, therefore, the idea that the AFPFL would seek dominion status had been comprehensively dismissed, as in the course of their negotiations with the Burmese delegation, the British government had made clear that it was not possible to retain dominion status without a link to the crown. However, a more discrete question arises when one considers whether or not the AFPFL had ever sought dominion status.Footnote 7 In order to answer this question, we must briefly explain what was meant by “dominion status.”
Dominion status in the time of decolonization was typically conferred by means of a positive legislative act, either by imperial legislation (e.g., the Indian Independence Act 1947), or by order-in-council (e.g., the Ceylon Constitution [Amendment] Order in Council 1947). However, it was not the case that this was the only method for conferring dominion status. The concept had been introduced in the Colonial Conference of 1907 to distinguish between colonies and political associations within the Empire that had advanced further in terms of self-governance; the latter were to be called “dominions.” In the case of New Zealand, the title was confirmed by royal proclamation on September 9, 1907, but no such proclamation was passed in relation to either Australia or Newfoundland; it was simply accepted that their political development had advanced sufficiently that they would be called “dominions.” Similarly, the Constitution of the Union of South Africa makes no mention of dominion status, despite the fact that it was passed 2 years after the colonial conference in question, but it was accepted that South Africa was a dominion. Therefore, in order to be labelled a “dominion” within the Empire, a country had simply had to have advanced sufficiently in internal self-government.
It might be thought that the increasing statutory basis of the dominions in the aftermath of World War I meant that the older practice became obsolete.Footnote 8 In particular, the passage of the Statute of Westminster in 1931, which specifically listed the dominions and restricted the powers of the Westminster Parliament to legislate with effect to the dominions, might be taken as imposing a requirement that any new dominions must be established statutorily; again in the case of India and Pakistan this was written into s. 6 of the Indian Independence Act. This view is ultimately unsustainable. First, the statute book is not conclusive as to dominion status. The Second Schedule to the Merchant Shipping (International Labour Conventions) Act 1925 entitled “Dominions to which Act may not be applied by Order in Council” lists “British India” as a dominion, when it was clearly not a dominion until 1947. The reason it was not a dominion was based on its internal governance structures, rather than any statutory appellation. Second, the Statute of Westminster stated a conventional rule of the Westminster Parliament: it would not legislate with respect to the dominions except with their request and consent, but it did not apply in its entirety to all dominions when it was passed. In fact, New Zealand didn't adopt it until November 1947.
When the question of dominion status is raised in terms of Burma, it normally proceeds against the backdrop of the South Asian statutory model.Footnote 9 What is more interesting, however, is whether or not Burma could ever have been a dominion under the older model based on internal self-government. Under this older model, the proposals tabled by the Burmese delegation in London in 1947 were entirely consistent with dominion status. On January 15, for example, they referred to the provisions of the Government of Burma (Temporary Provisions) Act 1945 and noted: “…there seems to be no legal bar to the conversion by constitutional convention of the Governor's Executive Council into a Cabinet with full responsibility for all affairs on the advice of which the Governor must act. Similarly, a Legislature can be constituted under the Act in any manner laid down by an Order in Council, with such composition and functions as may similarly be prescribed.”Footnote 10
While the Burmese delegation preferred to vest legislative power in the Constituent Assembly, this suggestion was presumably (although not explicitly) on the same basis. They also argued that any subjects that were not already within the remit of the Executive Council (e.g., defense and foreign affairs), should be put within its jurisdiction and subject to the same procedure.Footnote 11 The model outlined in this memorandum was, therefore, in fact, dominion status, although not explicitly called this, and only an interim measure while the Constituent Assembly formulated a new constitution. It might be argued that the shortened time frame that such a constitutional structure would exist for (in the case of Burma less than 1 year), and the explicitly interim nature of the measure meant that, if it had been adopted, it would not have been possible to call Burma “a dominion.” This objection seems unsustainable when one realizes that dominion status rested on the nature of internal government rather than its duration. Dominion status in India lasted less than 4 years, and it was not certain in January 1947 how long such “interim” structures might last in Burma. It was not inconceivable that the Burmese interim government might continue to sit for many years.
Finally, it might be argued that even if a conventional rule provided something approximating dominion status, insofar as the colonial constitution was still legally in force, this meant that the strict legal position was that Burma remained a colony. This was, after all, the position subsequently adopted by the Judicial Committee of the Privy Council in the case of Madzimbamuto v Lardner-Burke.Footnote 12 There are two major objections to this point: first, it was not clear in 1947 that this view would hold, and, second, while the judgment may be taken to accurately reflect the legal position of British constitutional law, it did not state the political position of the British Constitution, and normally it was the latter that was more important. In 1947, the most relevant authority was British Coal Corporation v R from 1935, in which the Judicial Committee of the Privy Council held that dominion status was unaffected by the legally unlimited power of the Imperial Parliament to pass statutes extending to a dominion.Footnote 13 It is therefore at least arguable that had the Burmese suggestions in the course of the negotiations been accepted, Burma would have become a dominion while the Constituent Assembly sat.Footnote 14 Ultimately, this was stymied by the British insistence that conventions could not be used to overcome the specific legislative language granting powers under the 1935 Act, although it can scarcely be doubted that had a total transfer of responsibility been achieved, it would have upset negotiations in India.
The Drafting Process
The Aung San–Atlee agreement provided for the election of a constituent assembly under the electoral machinery established by the Government of Burma Act 1935. The Panglong Agreement in February 1947, to be drawn up by the Constituent Assembly, provided some hope that it would be possible to allay the concerns of Shan, Kachin, and Chin representatives. Elections for the assembly were held in April 1947, with an overwhelming majority of the AFPFL returned.Footnote 15 This was in part due to the boycott of the elections by the Karen National Union. The speed at which the drafting took place was impressive; in comparison to Burma's, the Indian Constituent Assembly sat for slightly more than 4 years. Indeed, writing in January 1947, the secretary of state for India and Burma doubted that the work “even on the most optimistic estimate” could be finished by December.Footnote 16
Contemporaneously with these elections, Chan Htoon, the legal advisor to the Constituent Assembly, visited New Delhi. Like many South Asian lawyers, Htoon was widely travelled. He had received his legal education at the University of Rangoon and University College London (UCL), before being called to the bar of the Inner Temple in 1931.Footnote 17 He commenced his studies in UCL in 1928.Footnote 18 In his first year, he studied English Constitutional Laws and started a course on Indian Criminal Code and Criminal Procedure, but appears to have abandoned that course in favor of English Criminal Law. In 1929, he studied Constitutional Laws of the British Empire and appears to have studied Public International Law under Hersch Lauterpacht. The UCL calendar for 1928–29 indicates that the course he took in English Constitutional Law was lectured by Edward Jenks.Footnote 19 The course in Constitutional Laws of the British Empire was lectured by J.H. Morgan and H.A. Smith, but it appears from his transcript that he took the day course under Smith.Footnote 20 The University of London had the most vibrant faculty in the United Kingdom for the study of constitutional law during the interwar period.Footnote 21 Thereafter, Htoon returned to the Bar in Burma where he represented many of the nationalist leaders who went on to subsequent importance in the AFPFL.
The drafting of the Burmese Constitution was significantly influenced by developments in India. Chan Htoon went to New Delhi in April 1947 where he had access to the papers that were being compiled for the Indian Constituent Assembly. It was in Delhi that he compiled the first draft of the Burmese Constitution.Footnote 22 Htoon returned to Rangoon with the Second Series of the book Constitutional Precedents, which was compiled for the Indian Constituent Assembly.Footnote 23 This volume compiled the texts of various constitutions of the British Commonwealth (Canada, Australia, South Africa, Ireland and the Leeward Islands) and of other countries (the United States, Soviet Union, Switzerland, Danzig, and the Weimar Republic). The presentation of Ireland was such that it would inevitably be of interest, because it indicated that de Valera, the Taoiseach (Prime Minister) of Ireland, believed that Ireland was a republic but that it could still be in the Commonwealth: “we have here an interesting example of a State which its own Premier claims to be an independent republic but which the United Kingdom and the Dominions treat as a member of the British Commonwealth.”Footnote 24
The work of the Indian Constituent Assembly, in particular its focus on comparative constitutional texts, was informed by the work of Benegal Narsing Rau's brother, Benegal Shiva Rao, whose 1934 volume Select Constitutions of the World included introductory texts on the then-extant constitutions.Footnote 25 This text was, in turn, drawn largely from the volume Select Constitutions of the World which was prepared for the Irish Constituent Assembly in 1922.Footnote 26 When in Delhi, Chtoon acquired a copy of the Interim Report of the Advisory Committee on the Subject of Fundamental Rights prepared for the Indian Constituent Assembly on April 23, 1947.Footnote 27 This interim report was a result of the work of the committee, which included among its members B.R. Ambedkar, K.M. Munshi, Sir Alladi Krishnaswami Ayyar, and latterly, Sardar Patel. The drafting work was substantially completed by Rau, who detailed the number of foreign influences drawn upon to ground the earlier drafts including the American, Swiss, Weimar, Irish, Yugoslavian, Czechoslovakian, and Chinese constitutions.Footnote 28 This draft was a source for the justiciable rights under the Indian example, while the non-justiciable rights were dealt with in a prior report of April 16, 1947.Footnote 29 Finally, the Second Report of the Union Powers Committee under the chairmanship of Jawaharlal Nehru was a source that was used by the drafters.Footnote 30
Rau's assistance to the Burmese endeavor, and the influence of the Indian drafting materials, was recognized in a letter from the Burmese Constituent Assembly to the Indian Constituent Assembly on July 14, 1947.Footnote 31 Rau's influence was not limited to New Delhi. He was invited to Rangoon to assist the Burmese Constituent Assembly, which he did in late August 1947.Footnote 32 A measure of the importance of Rau can be seen from the actions that were taken in light of the fact that Rau was subject to the normal customs procedures when he entered the country, with the resulting delay being the subject of a complaint. This prompted the acting Secretary of the Department of Foreign Affairs, Soe Nyun, to instruct the financial commissioner that the customs authorities in Rangoon and Akyab should exempt Rau and his party from customs formalities, and that the direction from the commissioner to the authorities should be forwarded to Rau.Footnote 33 This request was complied with, as was a claim by the customs officials that the original delay was actually the result of how long it took the baggage to come off the plane, rather than of any customs delays.Footnote 34 The close links in the drafting process between Delhi and Burma indicate that, from the point of view of constitutional structure at least, it is more appropriate to link Burmese constitutional history to South Asian, rather than Southeast Asian, at this time.
In Rangoon, the AFPFL examined Htoon's constitution, which they used as a basis for their own draft in May 1947.Footnote 35 In the Constituent Assembly, some provisions of the constitution were amended in committee, particularly those relating to the relations between the federal government and the states, but it is noticeable that large swathes were left untouched. This accounts for the comparative speed of the Burmese drafting exercise. The Assembly itself, dominated by the AFPFL, was not the locus of disagreement: “The object of the proposed clause was explained, one or two questions were asked, but there was no argument. This convention was very helpful and enabled the Assembly to complete its work in three months.”Footnote 36 Instead, the decisions were made at committee stage, which meant the individuals involved at this stage were comparatively more influential than in a system in which a constituent assembly dominated. Moreover, the speed of the drafting meant that large parts of the constitution did not change during the process. In the next section, we will consider what influences there were on the Burmese Constitution.
Attribution and Influences
The current historiography regarding the 1948 Constitution has essentially proceeded along two tracks. One follows the line set out by the influential commentator F.S.V. Donnison as follows:
The constitution of the Union of Burma, framed by the Constituent Assembly before the departure of the British, borrowed details from the United States, from France, from Yugoslavia, but overwhelmingly it was derived from the United Kingdom. It rather curiously synthesized federal and unitary characteristics. In form Western parliamentary democracy as practised at Westminster was set up in Burma. But although democratic in form, the main intention underlying the legal phrases was not so much to enable the people of the country to choose the political ideology they preferred as to establish and safeguard socialism in Burma.Footnote 37
This analysis appears to have been derived from John Cady's monograph “A History of Modern Burma.”Footnote 38 It was accepted and expanded upon significantly by J.S. Furnivall in his foreword to the second edition of Maung Maung's Burma's Constitution. which argued that Burma had “modelled the Constitution on a British pattern, decked up with various modern gadgets.”Footnote 39 This manifested itself in an extreme scepticism of the power of the judiciary of Burma. Furnivall was dismissive of Burmese insistence on the separation of the executive from the judiciary, calling it “a doctrine originating in a misinterpretation of the British Constitution,”Footnote 40 of the power of the judiciary to interpret legislation or set it aside,Footnote 41 and of the tendency of courts to favor private rights over social interest, which “was a heritage from the British legal system.”Footnote 42 Here, Furnivall may have been influenced by the preference that Julie Pham documents for the “English ideal of government.”Footnote 43
These flaws that Furnivall noted were, of course, actually part of the Irish constitutional tradition, which established judicial review of legislation and a separation of powers under its constitution. Moreover, as we have seen, the tendency for the Irish courts to favor private rights over social interest was also a matter of discussion in Irish legal circles.
Donnison's influence means that this line has been accepted in some subsequent considerations of Burma's history.Footnote 44 A second view of the constitutional drafting is rather more expansive. The most recent formulation by Maitrii Aung-Thwin, building on earlier insights from Maung Maung, acknowledges the Burmese “referencing of constitutional models found in Sweden, the United States, Australia, Ireland, the Soviet Union, and Yugoslavia.”Footnote 45 Melissa Crouch has also noted the influence of the draft Indian Constitution on the Burmese process.Footnote 46
This article used an algorithmic approach to analyzing the various influences on the Burmese Constitution. The first step was to isolate the sources that were available to the drafting team. As already noted, some of these were compiled by the Indian Constituent Assembly: Canada, Australia, South Africa, Ireland, the Leeward Islands, the United States, the Soviet Union, Switzerland, Danzig, and the Weimar Republic. To this we added the Yugoslavian Constitution, as accounts noted its influence. These constitutions were formatted in a machine- readable fashion and then used as comparators for the Burmese text. Using an algorithm developed by Andreas Wagner, these texts were then compared with the Burmese Constitution. This provided 909 Excel spreadsheet cells, which were linked with five potential matches according to text similarity. These matches were then manually compared to check similarity to the Burmese text. In the course of this exercise, it became clear that the Burmese drafters had access to initial materials that had been drawn up internally by the Indian Constituent Assembly, so these materials were also coded and used as a potential source.Footnote 47 This allowed us to compare the various provisions and to attribute the genesis of the provisions to different sources.
There were some complications with this method. First, some provisions overlapped with Indian provisions, but it was not clear which one was drafted first; for example, section 94 of the Burmese Constitution. In this instance, it was attributed to a Burmese influence. Second, some of the provisions drew on other sources that were also coded. For example, the Indian provisions relating to fundamental rights were derived, in some instances, from Irish precedents. Here the question was addressed also in relation to the ordering of provisions, so if they were in the same order as in the Indian draft, which was different from the Irish Constitution, then the provisions were attributed to the Indian draft. Finally, although every effort has been made to identify possible drafts, it is not impossible that further sources may surface in the future.
This method allows us to provide a comparative method of the general approach to constitutional borrowings in the Burmese context. The result does not purport to be a definitive statement, but this method allows us to assign a broad comparative weight of influence of different factors. This allows us to test the views put forward in the historiography.
The comparative analysis generated the following pie chart (Figure 1), which illustrates the number of words derived from different sources. The constitutional text was initially divided using sentences, but this seemed a less precise measurement than using words, as a short sentence might consist of a single word or phrase, although it does leave us with the rather inelegant but precise phrase “new words,” to indicate those words that were drafted in Burma in 1947.
Figure 1. Percentage of words from each source.
The number of new words was slightly fewer (40.44%) than those derived from other sources. Of those derived from other sources, the most important source was the 1937 Constitution of Ireland (27.16%), followed by the Burma Act (16.09%), and then the Indian Constituent Assembly (9.23%).
The new sections that were drafted in Burma itself are embedded throughout the document, but occur in a sustained fashion from chapter 9 onwards, which encompass the sections that regulate the relationship between the states under the Constitution and the federal government. These were certainly the most contentious elements of the Constitution, and once one acknowledges that the Panglong Agreement was concluded in advance of the Constituent Assembly, it is must be conceded that they were viewed as the most important provisions.
The Donnison/Cady argument is plainly defective; it attributes no influence to either the Irish Constitution or the Indian Constituent Assembly as a precursor to the Burmese Constitution. As can be seen in Figure 1, the Irish Constitution appears to have formed the basis of considerably more constitutional text than the Government of Burma Act, which was the only United Kingdom element that can be seen in the Burmese Constitution.
Aung-Thwin's formulation is more correct, although perhaps slightly misleading insofar as it buries the Irish influence among others, whereas the research carried out thus far indicates that it was, in fact, the biggest non-domestic influence on the Burmese Constitution. Moreover, the formulation advanced there doesn't include the Indian Constituent Assembly as a source for the Burmese Constitution.
There is another, more generous, explanation for the Donnison/Cady insistence on British importance to the constitution than simple oversight. This is that while British inspiration for the Burmese Constitution was, as we have seen, somewhat limited, the subsequent development of case law in Burma relied on British precedent. The approach was struck relatively quickly in the U Saw case:
Though the jurisdiction of this Court and that of the Privy Council in criminal matters flow from two different sources and this difference in the origin of the jurisdiction of the two Courts is a matter which must not be lost sight of, yet it is clear that many of the rules laid down by the Privy Council in England in the various cases coming before it on applications for special leave to appeal in criminal matters, are rules of wisdom and should receive from this Court a respectful attention and should ordinarily act as guidance of the discharge of its functions under section 6 of the Union Judiciary Act.Footnote 48
In the same year, the Supreme Court adopted the opinion of the Judicial Committee of the Privy Council in relation to how to interpret the constitution, that the “construction most beneficial to the widest amplitude of its powers must be adopted.”Footnote 49 It might be argued, therefore, that while the Irish fingerprints could be seen most clearly in the architecture of the constitution, subsequent case law was largely derived from British sources.
What this exercise clearly demonstrates is that more than half of the sentences in the Burmese Constitution were taken word for word from other drafting documents, as Maung Maung has commented: “It was more or less a ‘cut and paste’ affair, cutting out attractive sections from the Yugoslav constitution, may be, or the constitution of the Republic of Ireland, and pasting them on the draft of the Burma constitution: all that was wanted for those parts was a pair of scissors and a bottle of glue. But there were basic principles which had to be formulated, and which could not be borrowed, and over those the framers of the constitution were enlightened and far-visioned.”Footnote 50
The broad outlines of the influences are as follows: India for the rights sections and the enumerated powers, Ireland and the Government of Burma Act for the machinery of the state, Yugoslavia for state socialism (the influence is particularly evident in Article 23), along with a scattering of influences from the Soviet Union, South Africa, Danzig, and Australia. Everything else appears to have been drafted from scratch, including perhaps most importantly the provisions relating to federalism and the State Councils.
To demonstrate the nature of the borrowing, it might be helpful to provide some examples, chosen at random across the provisions of the Burmese Constitution. In these examples, we look at Ireland as the comparator (Table 1).
Table 1. Comparison between Burmese and Irish Constitutional Texts.
Similar examples can be given for other borrowings; for example, Article 23(3) of the Burmese Constitution begins “Private monopolist organizations, such as cartels, syndicates and treusts formed for the purpose of dictating prices…” which comes from Article IV, section 18 of the Yugolsav Constitution: “The existence of private monopolist organizations, such as cartels, syndicates, trusts and similar organizations created for the purpose of dictating prices…” It is worth noting here that this method of drafting is relatively commonplace; the Irish Constitution itself has a substructure based on then-existing constitutional documents and traditions.Footnote 51
The rushed nature of the Burmese drafting exercise meant that it was imperative that examples be taken from other constitutions. In this context, it is hardly surprising that the Burmese drafters would draw on a wide range of international examples for their own endeavors. Nonetheless, it is striking that the most important influence that was drawn upon was that of Ireland, which raises the question as to the nature of the intellectual links between Burma and Ireland at the time.
Ireland
The Burmese interest in Ireland had deep roots when the time came to draft an independence constitution for Burma. The personnel who were to be involved in the establishment of the new State had connections—either personal or ideological—with Ireland, which meant that there was some familiarity with the political outlook of the country. These can be seen in two separate pathways, both of which were influenced by Ireland; at the elite level, and at the nationalist level. These links were important, because, as we have seen, the work of the Burmese Constituent Assembly was dominated by a small number of political actors. If they were positively disposed toward Irish ideas, then it was relatively easy for these ideas to be incorporated into the new text.
One example of the links that existed were with the pre-World War II elites, such as U Tin Tut, described as “the only experienced hand in the [first independence government].”Footnote 52 He had studied at Cambridge and attempted to enlist in the Officers’ Training Corps in England in order to gain a commission in the Indian Army, but was turned down as he was not of European descent. He then moved to Dublin where he enrolled in Trinity College Dublin and enlisted in the Dublin University Officers’ Training Corps. The Irish regulations had the same stipulation in relation to European descent, but Tin Tut noted “it was left to the Irish to treat improper rules with proper contempt.”Footnote 53 Tin Tut had met Michael Collins on one occasion in Dublin, when Paramasivan Subbarayan, then a student in Dublin and subsequently chief minister of the Madras Presidency and governor of Maharashtra, brought him to the hostel where they were staying.Footnote 54 Tin Tut was to have been conferred with an honorary LLD degree in October 1948, shortly after he was assassinated.Footnote 55 Other notable students who studied at the University of Dublin include U Htin Aung, who received a PhD in literature,Footnote 56 and who also appears to have studied some law,Footnote 57 before returning to become rector of the University of Rangoon.
A second link was the most important indigenous nationalist movement in the 1930s, which also had an interest in Ireland. This was the Dobama Asiayone movement, which argued for complete Burmese independence and socialism.Footnote 58 It strongly opposed the Government of Burma Act, which was the basis of the first resolution at the Myingyan Conference in 1936.Footnote 59 More significantly, it decided to allow students into the organization, and this meant that future nationalist leaders such as Aung San and U Nu were able to quickly rise in the movement to become Executive Committee members.Footnote 60 What is interesting about the ideological leanings of the Dobama movement was how influenced by Irish republicanism it was. Thant Myint-U notes the influence that the Irish War of Independence had on nationalist thinking in Burma.Footnote 61 Ba Maw recounts their fascination with Ireland:
Politically, it followed, up to a point, the example of the Sinn Fein Party in Ireland. Thus in imitation of Sinn Feinism they used the name Dobama (We Burmese) for themselves and everything connected to them, their rallying song and their slogans and their salute. They also called themselves thakins (masters) in defiance of the colonialists who called themselves by that name when dealing with the Burmese; they read, when they did so, such Sinn Fein publications as Dam Bren's I Fight for Freedom … they caught, by lashing out at the British and almost everyone and everything with Feinian (sic) ferocity, the mood of those among the youth and workers who had begun to be seized by the fever of the times in which they lived; and so they forged ahead.Footnote 62
The reference to the book here is slightly awry; the author is Dan Breen and the book's correct title is My Fight for Irish Freedom. It is an account of the Irish War of Independence from the point of view of a member of the Irish Republican Army; in fact, there are references in the book that indicate his disdain for the Sinn Féin party, which he regarded as not republican enough because of their commitment to democratic norms. It seems clear, however, that Ba Maw is correct and that the title of the Burmese official independence commemoration, Burma's Fight for Freedom, was an homage to Breen. Although the Dobama were represented in 1947 in London for the Atlee talks, they were not as significant a force in Burmese national life after World War II as before it, but the ideological formation of Aung San and other leaders of the AFPFL as a Thakin was significant.Footnote 63 Their distrust of older politicians and of the colonial state led them to conclude that “mass struggle” was the answer, including using methods such as boycotts.Footnote 64 The barrister for the Thakin movement in many of their most famous cases was later to become the legal advisor to the constituent assembly, Chan Htoon.Footnote 65 The influence of Ireland on Burmese nationalism can also be seen by the Nagani Book Club, which was set up by Than Tun, Maung Soe, and Maung Nu, the latter becoming the first prime minister of Burma under the independence constitution.Footnote 66 This book club printed eight books on Ireland, including translations of My Fight for Irish Freedom, Batt O'Connor's biography of Michael Collins, and Dennis Gwynn's biography of de Valera.Footnote 67
The Irish influence might be thought to have waned in the aftermath of World War II, but the Burmese fascination with the country remained strong. A review of 2 years of the Burmese Review reveals an intense interest in Ireland; the level of newsprint coverage was staggering considering the distance between the countries.Footnote 68 The Burmese interest in Ireland, which extended to sometimes referring to the Burmese as “the Irish of the East,”Footnote 69 included a cover piece on “The Idea of a National University” focusing on the Irish experience of establishing a National University in 1908.Footnote 70
The fall of the de Valera administration in 1948 was front page news in a report written by Htin Aung, the rector of the University of Rangoon who had studied in Dublin.Footnote 71 It was generally sympathetic to de Valera's point of view and took up two full pages of copy, as well as two paragraphs in another page. This might perhaps be explained by the particular circumstances de Valera found himself in 1948—the sole remaining democratic leader from the prewar years made him a curio—but it doesn't explain the subsequent coverage of domestic Irish affairs. This included a profile of the incoming Taoiseach, John A. Costello, who replaced de Valera,Footnote 72 and what de Valera was doing in opposition.Footnote 73
The opening page of The Burmese Review in the second issue after the assassination of Aung San was titled simply “Sympathy from the Irish People,” and consisted of a comparison between the assassinations of Michael Collins and of Aung San.Footnote 74 It concluded: “(t)he Irish people send their condolence and sympathy to the Burmese people for the grievous loss the nation has suffered.”Footnote 75 That the views of a tiny island more than 9,000 km away on the assassination of the leader of the Burmese nationalist struggle were considered front page news is particularly striking.
The March 3, 1937 edition of The Burmese Review contains the clearest illustration of the Burmese interest in the Irish constitutional text. In that issue Tin Tut wrote a four page article entitled “The Constitution of Ireland,” which canvassed all of the notable features of the Irish Constitution: the focus on popular sovereignty, the composition of the legislature, the presidency, the government, the Council of State, fundamental rights, religion, and social policy.Footnote 76 Tin Tut drew attention to the fact that the crown had been eliminated, but Ireland remained within the Commonwealth, in what seemed an attempt to sway public opinion in favor of continued membership. He was, however, clear in his endorsement of the Irish Constitution as an example: “The present Constitution of Ireland is of particular interest to Burma at a time when the Burmese Constituent Assembly is about to be elected. The Act is a combination of idealism and practical expression in the Constitution of modern ideas relating to the functions of the State and the fundamental rights of citizens.”
While the provisions of the Irish Constitution were available to the drafting team, it might be tempting to think that this text was the extent of the Burmese interest in Irish constitutional law. There is, however, some evidence of a more lasting interest by Htoon in Irish constitutionalism beyond the mere text of the constitution itself.Footnote 77 In November 1947, Htoon paid a visit to Ireland and looked for Irish examples that could be used as a basis for Burmese administrative machinery, including, for example, warrants of appointments of judges, the form of army commissions, and registers of bills and acts, on the basis that the new Burmese Constitution “has borrowed largely from [the Irish] Constitution.”Footnote 78 After independence, he became the attorney general, and in 1950 he appeared before the Supreme Court in the case of Tinsa Maw Naing v The Commissioner of Police, Rangoon.Footnote 79 This was a habeas corpus case that concerned a detention under the Public Order (Preservation) Act 1947. The key question was whether or not the subjective intention of the police commissioner was sufficient to lawfully detain someone under the Act, or whether the intention had to be reasonable. In the course of the pleadings, Htoon referred to the Irish case In the Matter of the Offences Against the State (Amendment) Bill 1940.Footnote 80 The consideration of the Irish precedent took up two pages in the decision of the chief justice, along with a further page that considered the differences between the Irish Free State Constitution and the Irish Constitution in relation to the use of the phrase “judicial power.”Footnote 81 One striking element of the Naing decision was that the Burmese Supreme Court referred to “a majority of three to two” in the Irish case.Footnote 82 In fact, the text of the Irish decision simply disclosed that it was a majority decision, but not the number of judges on each side of the argument; it could as easily have been a majority of four to one.Footnote 83 What is particularly interesting is that in the Irish Parliament, Deputy James Dillon specifically referred to a three judge majority.Footnote 84 While it is not clear that Chief Justice Maung was aware of this when he handed down his decision, the specificity of the numbers and Htoon's presence in Ireland may have meant that he was aware of this, not least because it resulted in an amendment of the Irish Constitution in order to prevent disclosure of the fact that such a judgment was by a majority.Footnote 85 It's not clear exactly how far-ranging the discussions were in Dublin, but the corresponding visit of Rau at approximately the same time indicates a frankness in exchange relating to the operation of the Irish Constitution, which means that it is quite possible that the Supreme Court majority was discussed.Footnote 86 It may have been of particular interest to Htoon, as the provisions governing majority decisions was the same under the procedure for presidential referral of bills passed by the Shan, Kachin, and Karenni State Councils.Footnote 87
The significance of this from our point of view was that the case post-dated the coming into force of the 1937 Constitution. Htoon's interest in Irish jurisprudence extended not merely, therefore, to the constitutional text, but also to the constitutional law of Ireland. This point must, however, be tempered by the recognition that his interest in comparative constitutional jurisprudence was wide-ranging. In the same case, he referred to British and Australian precedent.Footnote 88 In fact, the Irish reference in Naing appears to have been the only one made in the first 15 years of cases. It is interesting, however, to see the cosmopolitan comparative constitutional analysis that Htoon would have been exposed to during his time studying in the United Kingdom reflected in his subsequent interests in Burma.
Conclusion
This article has sought to consider some elements of Burmese constitutional history during the period leading into independence. It has argued that the AFPFL was prepared to accept dominion status, although only as a provisional state pending full independence. It has considered the drafting process in 1947, drawing attention to the close links between the Constituent Assembly in Delhi and the Burmese drafting process. A textual consideration of the provisions of the Burmese constitution revealed a very substantial influence of the Irish Constitution. The Indian connection was also clearly evident here when preliminary drafts that were prepared by the Indian Constituent Assembly are compared with the Burmese constitution. The Irish connection is perhaps less readily evident from a constitutional point of view, but this article has traced some of the links between Ireland and Burma.
The Irish and Indian links are perhaps less obvious, because the most naturally eye-catching elements of the Burmese Constitution to a comparativist are the provisions relating to state socialism (borrowed from Yugoslavia), and federalism and secession (which were newly drafted). The fact that the Irish constitution survived World War II undoubtedly accounted for some of the interest that it generated, as did Ireland's political structure as a common law republic that existed within the Commonwealth; however, it is also the case that there was a deep interest in Irish nationalism in Burma at the time. This cannot but have helped influence the Burmese drafters in 1947 when they were casting about for models to use.
The Burmese Constitution immediately came under immense strain due to the Communist Party of Burma's insurgency in 1948, and thereafter by demands for independence by the Karen National Union. Victor B. Lieberman identifies one weakness of the 1947 attempted constitutional settlement in its preoccupation with European ideas of nationalism, unmoored from the traditional religious bases that defined earlier Burmese concepts of kingship.Footnote 89 The inability of this model to mediate differences among ethnicities, indeed the manner in which these ethnicities themselves make claims on the basis of similar ideas of nationalism, combined with the non-participation of various ethnicities in the pre-constitutional decision-making structure, meant that rupture was increasingly more likely, particularly once the guarantees of secession in the constitutional text were abandoned.Footnote 90 Moreover, it was not clear whether or not the rupture on the basis of an economic/social model with the Communist Party of Burma would, on its own, have ended in a collapse into military dictatorship.
The ultimate failure of the first Burmese Constitution should not be a cause for surprise however. Most constitutions fail within 20 years, and on a long enough timeline all constitutions fail. It is more instructive to think of constitutional history as an iterative process, with the abandonment of a constitution often analogous to constitutional amendment. Taking this view, the more significant development was the failure to iterate a new democratic constitution upon the failure of the 1947 document.
The drafting process itself demonstrates the necessity of understanding the development of constitutional processes and ideas outside of a strictly national context. The influence of the Indian process has been described here, but this article hasn't attempted to consider whether the Burmese Constitution itself influenced the Indian drafting process. The interactive nature of constitutional history in South Asia at the time is clearly situated, however, in a broader intellectual history that defies strict jurisdictional limits.
The textual analysis carried out in this article demonstrates some ways in which digital humanities can be used to broaden our understanding of legal history. The use of these tools allows us to identify patterns that were not previously noticed, or, as in this instance, to note that links that had been considered in the extant literature were much deeper than anticipated. This, of course, simply raises a series of new questions, which textual analysis itself cannot hope to solve. Textual analysis alone cannot, for example, effectively capture the constitutional culture being built up in a country,Footnote 91 nor can it identify how subsequent developments will allow for divergences. It does, however, allow us to identify some interesting points of transnational convergence, and to provide a starting point to try to identify why these convergences exist, such as the constitutional moment when the Burmese drafters decided to rely on the Irish example.
Acknowledgments
This article as workshopped at a number of different venues. The author particularly thanks the participants at the South Asian Legal Studies conference at the University of Mdison School of Law in 2019 and the Asian Legal History Conference in 2021. The author also thanks Priyasha Saksena and W. Elliot Bulmer for comments on an early draft. The initial research for this article was carried out while the author was employed by the Max Planck Institute for Legal History and Legal Theory in Frankfurt am Main. The author thanks Magdalena Gebhart for her assistance with the digital elements of the article, and Andreas Wagner for developing the algorithm used.
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