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1947 Constitution still intact
1947 Constitution still intact, says Shan lawyer
The union constitution that merged the non-Burman states with Burma in 1947 is still in place, according to Nang Mo Kham Hom, who graduated from the Northern Territory University School of Law with a Bachelor of Laws (First class honors) last year.
Her paper, "Revolutionary Legality": The Coup d'etat of 1962 and the Burmese military regime, that reached S.H.A.N. only of late, examines the still evolving principles of revolutionary legality, a term that came into prominence soon after the end of World War II, and in that context, considers the legality of the military regime in Burma. It concludes that under those principles, legality cannot be established and, therefore, the 1947 Constitution remains intact.
The term 'revolutionary legality', according to the paper, has been used in consideration of the dejure status of governments installed after a coup d'etat or revolution. Quoting Hamoodur Rahman CJ, she argues that the 'physical force' that the usurper possesses 'can never by itself give him the legal right to convert his de facto claim into a de jure claim'.
According to the principles, while there exists an effective, legal rival for power, de jure recognition should not be given to the new government. For a revolutionary government to achieve de jure status, the following conditions should exist:
| (a) | the revolution is successful, the new government firmly established, there being no rival one; |
| (b) | its rule is effective i.e. the people by and large are behaving in conformity and obeying its mandates; |
| (c) | such conformity and obedience are due to popular acceptance and support and are not mere tacit submission to coercion or fear or force; and |
| (d) | it must not appear that the regime is oppressive and undemocratic. |
"(T)yrannies are illegitimate, given the modern evolution of human rights law," she quotes Nanda VP.
She concludes that since the regime in Burma does not meet any test for legality, it follows that the 1947 constitution remains valid.
Khami, as her friends call her, was awarded the Northern Territory Supreme Court Medal. She resides in Australia with her husband, Professor Ned Aughterson and her baby son, Liam.
Her father is Khun Hom, a native of
Haipa, once a sub-principality of Monghsu State, before the coup in
1962.
N.B. Please visit our website
http://www.shanland.org/SHAN/publications/NMKH/REV.htm for the full
text.
Comments shall be much appreciated.
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