What is a constitution?

International historians, political scientists and law experts have stated that there are four characteristics of a nation. They are population, territory, government and sovereignty.
Only when a nation possesses these characteristics will its identity of a State come into shape. Without its citizens or population, a country will be just a wild land. Without territory, it will be like one who has no home. Without government, anarchy will reign. Without sovereignty, the nation will be under subjugation.
As today’s Myanmar is equipped with these characteristics, her identity of a State becomes complete. Myanmar has its own population, territory, government and sovereignty (Independence).
Sovereignty of the State is the rights of its people. The three branches of sovereignty are legislative power, executive power and judicial power. These three branches are also called State power. A government has to be formed to pracitse sovereign power representing the people. When the population of a country reaches tens or hundreds or thousands of million, a government representing the people comes into being.
About 600 BC before Christ, urban citizens such as Romans, Athenians and Spartans who could not stomach slavery, landlordism and monarchy introduced democratia or a government by the people. In those countries with only a population of hundreds of thousands each, mass meetings were held to discuss and decide security, executive and judicial affairs only with the participation of men aged 20 and above. It was called direct democracy.
However, direct democracy came to an end as a result of differences in class and areas of interest. After the world came under influence of feudalism, most human beings became slaves. With the advent of capitalism when goods were mass-produced and flow of commodities was easy in the world, the people became slaves in the factory.
Oppressed by feudalist kings, the capitalist bourgeoisie confronted the former and were able to demand freedom for capitalists in the 17th Century. The capitalists established a parliament (hluttaw) and exercised legislative, executive and judicial powers. They were able to produce and trade goods freely. Capitalist governments with the use of three branches of power colonized other countries to gain more wealth. With the practice of democracy, such capitalist governments encroached upon sovereignty, democracy and human rights of other global nations and exploited valuable resources and property.
Consequently, as many as a hundred small nations came under subjugation. They had to fight for their independence 50 to 100 years. In the aftermath of the Second World War most of the countries became independent. So did Myanmar after she had fought against colonialists. As of 4 January 1948, Myanmar has regained her independence and sovereignty.
Every free nation has to contemplate how three branches of power are to be distributed and shared and to whom they are to be entrusted. Rules and regulations had to be prescribed. Laws had to be enacted. State constitutions emerged. Some constitutions are drawn properly while some are not but a collection or combination of laws. Thus they are called ‘Written Law’ and ‘Unwritten Law’ respectively. Britain’s constitution is said to be called unwritten law.
Constitution prescribes the structure of a nation. Different nations have varying geographical conditions, traditions and cultures, history and views.
The State constitution is the base of all the laws of a nation. If expressions of the existing laws are defined, they are to be done so in accordance with the essence of the basic laws. Each and every definition shall not go against the Constitution. Therefore, the Constitution is also named as the basic law.
The successive political scientists defined the Constitution in different ways. Aristotle defined the Constitution to be sovereign powers. Lord Bryce defined the Constitution as the discipline of political bodies formed in accordance with the laws. Law expert Dicey defined the Constitution as the one that came into existence from sharing executive power and functions. Austin defined the Constitution as description of the structure of a ruling government.
Nowadays, there have emerged contradictions and conflicts due to meddling in internal affairs, dissension, instigation and various ideas and isms created by colonialists. When a government, by fair or foul means, comes to power, it usually draws the new constitution or amends the old one according to its wishes. And the goal of the people is affected adversely. Therefore, whatever ism, party and group comes to power, an enduring State constitution will have to be promulgated in advance in order that it could not easily amend the constitution.
In line with the State constitution, a thorough discernment should be made to decide which form of nation or kind of nation is to be established. Some establish monarchy, constitutional monarchy, some oligarchy, some unitary system, and some union system according to their wishes.
The unitary system is a system in which sovereignty has been put in the hands of a central ruling government only. Under this system, there is only one government. There is only one legislative body. The power of the legislative body has been restricted (not to be shared with others). Only the central legislative body has the power to promulgate the law it wishes.
The union system is a system in which many states with common objectives have been formed. Under the system, powers are shared among the Central Government and state governments. There are weaknesses and strengths in the unitary system and the union system.
In the People’s Republic of China, there are 55 ethnic groups including Han national race that is the majority. However, only the unitary system is practised there. Self-administered regions and ethnic regions have also been designated. The UK (United Kingdom) or Britain is made up of England, Wales, Scotland and Northern Ireland. Although it is formed as a union, it comes under the name of a unitary system. Although its name is the United Kingdom inclusive of the word “United”, it is not like the United States of America that comes under a union system. There are over 20 unions all over the world. Although the USA was made up of 13 states at first, it now comprises 50 states. There are 51 administrative bodies including Washington DC where the President’s Office was set up. All the 50 states belong to white Americans.
Countries are different in legislation. There are unicameral system and bi-cameral system. There are also different systems in the division of legislative power. There are two systems—one is the three branches of State power has been centralized and distributed to lower bodies at different levels, and another is separation of the three branches of State power.
In the countries where parliamentary democracy is practised, the leader of a certain political party, of which over half its total candidates win the election, becomes the Prime Minister. The Prime Minister will appoint the ministers according to his wishes and form a cabinet. He will promulgate the law according to his wishes as his MPs are in the majority in the Hluttaw. The justices could freely pass judgment in court. However, the minister of justice of the Prime Minister will wield his influence on the court. In this way, the three branches of State power have fallen into the hands of the Prime Minister.
In the separation of power, the President takes charge of administrative power. The legislative Hluttaw takes full responsibility for legislation. The supreme court is held responsible for legislative power. In the parliamentary system, the only Prime Minister holds the three branches of the State power. In the separation of power system, the President, the Hluttaw and the Supreme Court share the State powers.
The drafting of a Constitution by a certain person or party is not proper and complete. The Constitution that comes into existence out of the wishes of the people will be more enduring. There can also be the constitution that represents the people. In the Constitution, detailed basic principles on sharing of power, building of a nation, duties and rights of citizens, management of State-owned resources, executive, legislation, judiciary, rules and regulations, the State flag, the State emblem, national anthem and revision of law are to be laid down. In this regard, serious attention should be paid to adoption of the detailed basic principles.
(Translation: ST+TS)

Author :  Takkatho Myat Thu