TABLE OF CONTENTS

REPORT ON THE AMENDMENT OF THE CONSTITUTION, AS PROPOSED BY

THE SHAN STATE GOVERNMENT AND ITS PEOPLE

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INTRODUCTION

When the Government of the Union of Burma and the Government of the People's Republic of China agreed on the demarcation of the boundary between the two countries and when the said agreement was approved by Union Parliament, it became apparent to the Government that the Constitution would have to be amended, especially, in relation to its boundaries. The Government apparently thought it would take advantage of the opportunity thus offered to round off the rough edges of the Constitution, if there be any. A motion was accordingly made in Parliament for appointment of a Constitution Revision Committee and the motion was carried. A Constitution Revision Committee was appointed with the Hon'ble Judicial Minister, Dr. E Maung, as Chairman. All the prominent political parties and all the States were fully represented on the Committee. A few eminent Jurists were also co-opted.

The Government laid down three principles for guidance of the Committee in dealing with the question of the revision of the Constitution. The principles are as follows: -

1. Not to infringe the principle underlying the Constitution;
2. Not to infringe the principle of Democracy;
3. Not to suggest any amendment that will sow dissension or promote discord among the races living within the Union.

At one of the meetings of the Constitution Revision Committee, a Shan representative is alleged to have asked the Chairman what sort of amendment of the Constitution they could suggest. The Chairman is alleged to have replied that they could bring forward any amendment that would not infringe any of the principles set out above; whereupon the Shan State Government called a meeting of the people of the Shan State under the Chairmanship of Mongnai Sawbwa, the Chairman of the Shan State Council.

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The meeting was said to have been well-attended by representatives of all the political parties and some independent people.

At the meeting, a Committee of 30 men was appointed to go into the question of the amendment of the Constitution.

The said Committee in turn appointed a small Committee of six men, called the Steering Committee to discharge the task entrusted by the meeting.

In due course, the Steering Committee produced a report, which we might call the Shan State Government's 'Blue Book', suggesting several amendments to the Constitution, one of which was to make Burma a State and thereafter to take all States equal in status, power and privilege.

The report further set out a list of grievances which the States and their peoples suffer in dealing with the Central Government and its officers. The report was discussed, approved and passed at a special conference called for the purpose. The Kachin State, the Kayah State, the Karen State and the Chin Special Division each sent either their Head of State or a member of their Government and representatives of political parties. The Head of the Kachin State and the Head of the Chin Special Division did not agree with the report and refused to support it; whereas members of the political parties of the Kachin and Karen States and the Chin Special Division were divided in their opinion.

During all this time, the Head of the Shan State was away in Europe. The Head of the Kayah State acted in his place. The Head of the Shan State returned after the adoption of the report at a special meeting called for the purpose, as mentioned above. On his return, the Head of the Shan State suggested calling a meeting of the representatives of all the States so as to re-vivify the dying United Hill People's Organization.

To that meeting representatives of the embryonic Arakan and Mon States were also invited. Five resolutions were passed at the meeting. We are not concerned with all the resolutions.

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Except one which is inter alia as follows: -

"We the people present at this meeting support the principle underlying the Report for the Amendment of the Constitution."

The Report was in the meantime already in the hands of the Central Government and the Central Government sent it to us for suggestions and advice on the demands made by the Shan State people and the Shan State Government.

TERMS OF REFERENCE

The matter was referred to us in the following terms among others: -

"Please examine the demands made by the Shan State people and its Government and, after consulting the leaders and representatives of the peoples of the States and Burma Proper, please give your advice and suggestions as to what steps should be taken."

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CASE AS STATED BY THE SHAN STATE GOVERNMENT AND ITS PEOPLE

The case put forward by the Shan State Government and its peoples is as follows: -

The Shan State was formerly composed of 33 small States. Each State was ruled by a ruler. There were three classes of rulers, namely, (1) Sawbwa (2) Myosa and (3) Ngwegunhmu. During the time of Burmese Kings these rulers were allowed to rule their States administration. They remained content with the receipt of yearly tribute from the rulers.

This state of affairs lasted till 1887 when the Shan States along with Upper Burma became British territory. Even the British did not interfere with the Shan Chiefs in the administration of their States, but in 1922 when dyarchical form of Government was introduced in Burma proper, the Shan States were joined in a Federation. Only a few subjects such as the Public Works, Health, Forests, Education, Agriculture and Police were made Central or Federal subjects, and brought into operation in five scheduled towns, namely, Taunggyi, Kalaw, Loilem, Loimwe and Lashio.

In order to pay for the expenses incurred in administering the Federal subjects, the Federal Government levied contributions from the States in various proportion, some States paying as much as 40%, while small States paying not more than 15% of their revenue.

This state of affairs lasted till the outbreak of the Second World War. During the duration of the War there was no proper and systematic administration in the Shan States. The Japanese who were in occupation allowed the administration to run in a haphazard manner. When the war was over in 1945 and when the British returned to resume their control, they did not restore the former form of administration. Instead they attempted to for a new form of administration, called the Frontier Administration. The Frontier Administration would comprise all the frontier areas forming one administrative bloc, separate from Burma proper.

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At the time the atmosphere was thick with rumours that Burma would soon be granted independence. The Shan Chiefs, thereupon, met under the leadership of the Yawnghwe Sawbwa in conference at Panglong. That was in or about March 1946.

The question that was discussed at the Conference was whether they should join China or Laos or Thailand or throw in their lot together with Burma and regain their independence or continue to remain a dependancy of Great Britain.

Nothing definite was, however, decided. Another conference was held a year later, i.e. in February 1947. At that conference not only the leaders and the representatives of the Shan people but also the leaders and the representatives of the Kachins and the Chins and the leaders and the representatives of the Burmese people headed by Bogyoke Aung San were present.

At that conference an agreement was reached between the leaders and the representatives of the Burmese people and the leaders and the representatives of the Shan, the Kachin and the Chin that the Frontier peoples would join Burma and form a Union of Burma, giving complete autonomy to the Frontier peoples. A Constituent Assembly was called in our course, attended by the representatives of the Burmese, the Shan, the Karen, the Kachin, the Chin and the Kayan.

The Constituent Assembly appointed a Constitution Drafting Committee of 75 members, which in due covered produced the present Constitution, which was later approved and passed by the Constituent Assembly.

The Constitution has new been in operation for over thirteen years. But the Shan State Government and its people now say that it is defective in that it does not give complete autonomy to the States, as stipulated by the Panglong Agreement.

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They complain that they cannot do anything for the development of their own States as the real authority and power are concentrated in the hands of the Central or Union Government.

For instance, they say that they have no control amongst others over forest, mines, minerals and land. They feel that if they are allowed, as they should under the Panglong Agreement, to work and develop their own for the development of their own State.

They also state that they do not get their fair share out of the revenue of the Central Government.

They further complain that the relations between the officers sent by the Union Government for service in the States and the peoples of the States are not friendly. The officers do not treat the peoples of the States as equals but as second class citizens.

In addition, they give the following instances where, they feel, they have been unjustly treated: -

1. In dealing with the States the letter and the spirit of the Panglong Agreement are being ignored entirely by the Union Ministers and their officers.
2. Some of the sections of the Constitution are being interpreted one-sidedly.
3. The Union Government does not consult the States in administering the Union subjects therein.
4. The Union Government servants look down upon the peoples of the States.
5. The Union Government servants do not pay proper respect to State Ministers.
6. In administrative matters, the Union Government, taking advantage of its superior position, takes one-sided view.
7. The States do not get help and privileges to which they are entitled.
8. In administering the Union subjects in the Shan States the Union Government servants do not consult the Shan State Government.
9. The Union Government interferes in the Shan State politics and its administration.

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To redress their grievances and remove the defects from the Constitution and its people suggest the amendment of the Constitution on the following lines: -

The Constitution should be amended in such a way as to introduce a real form of Federal Government providing equal rights and privileges for all States and citizens and containing the following points: -

The Shan State Government and its people also suggest amending some and deleting others of the following provisions of the Constitution as they are found unworkable in actual practice: -

Preamble, Section 8, 9, 23(3) (4) (5), 30 (1) (2) (3), 31, 91, 93, 94, 96, 122, 128, 131, 154, 160, 162 (1) (2) (3), 164 (2), 219, 222.

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CASE DISCUSSED

Before we discuss the case as presented by the Shan State Government and its people, we should like to explain what we have done in the matter.

On receipt of the Reference from Government on the 27^th April 1961, we invited the Heads of States and representatives of State Governments and leaders and representatives of various political parties in the Shan State and Burma proper to come and give us their advice and suggestions on the Constitutional reforms as envisaged by the Shan State Government and its people.

Everyone of them so invited responded to our invitation cheerfully.

We put on record our acknowledgement of gratitude to them for their kind help and advice. They are of immense help to us in solving this knotty problem.

Before we deal with the Constitutional aspect of the case, we should like to deal with the alleged grievances first. Some of them are so minor and trivial that if they are suffered by a Burman, nobody would take any notice of them. But when they are suffered by a non-Burman at the hands of a Burman, they assume undue proportion.

We will now deal with the grievances as listed by the Shan State Government and its people in, what we call, their Blue Book.

Grievance No. 1

In dealing with the States, the Union Ministers and their officials ignore the spirit and the letter of the Panglong Agreement.

In so making a charge the Shan State Government and its people seem to overlook the legal position of the Union Ministers and their officials in dealing with the States. In dealing with the States the Union Ministers and their officials are bound by the Union Constitution. Under the Union Constitution the Union Ministers and their officials cannot interfere in the administration of State subjects. In fact, the Union Ministers and their officials do not pretend to interfere in the administration of State subjects.

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It may be that in administering the Union subjects in the States, the Union Minister and their officials do not take the State Government concerned into their confidence sufficiently, if not for anything, but at least for courtesy.

This alleged grievance can thus be removed by understanding between the Union Government and the State Government concerned.

Grievance No. 2

In interpreting the Constitution, it is interpreted one-sidedly, i.e. the Constitution is interpreted to the disadvantage of the States and to the advantage of the Union Government.

In interpreting an act or a rule differences of opinion arise even among Judges. If the States think or feel that the Constitution is not interpreted by the Union Government currently, they have the remedy at hand. They can have recourse to Section 151 of the Constitution.

Grievance No. 3

In administering the Union subjects in the States, the Union Government do not consult the State Government concerned.

Constitutionally and legally the Union Government is not bound to consult a State Government in administering a Union subject in that State, but out of courtesy and out of political expediency, the State Government concerned should at least be informed, if not consulted, of what the Union Government intends to do.

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Grievance No. 4

The Union Government officials look down upon the States.

There is generally a black sheep in every flock not only in Burma but all over the world. Because of one black sheep other sheep should not be condemned. In any event, we understand that the Union Government has already taken steps to see that the Union Government officials, both military and civil, pay proper regard not only to State Governments but their peoples as well.

Grievance No. 5

Union Government officials do not pay due respects to State Ministers.

We do not think that Union Government officials intentionally and deliberately treat State Ministers with disrespect. It may be that their manners and behaviour in dealing with State Ministers are somewhat casual. In any event, this is a matter which can be settled administratively.

Grievance No. 6

In administrative matters, including finance the Union Government takes one-sided view.

As we pointed out above, this impression seems to prevail as the result of the difference of angle from which one looks at the matter in question. This in turn is due to the difference of opinion in the interpretation of the Constitution. This is a matter which can easily be solved by discussion between the Union Government and the State Governments.

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Grievance No. 7

The States do not get help and assistance to which they are entitled.

Judging by what has transpired in the course of discussion this grievance seems to have reference mainly to the Japanese Reparations.

At the beginning of the payment of the Reparations the Shan State did not get a share. It may be that the Reparations were at the beginning applied to works which needed immediate attention. Later the Shan State has been given a share. If the States made representation to the Union Government about the non-receipt of shares to which, if they feel, they are entitled out of monetary aid or assistance rendered by foreign countries, we are sure the Union Government will promptly and sympathetically take their representation into consideration.

Grievance No. 8

In administering subjects set out in the Union List in the Shan State, the Union Government Departments do not consult the Shan State Government.

Constitutionally and legally, the Union Government Departments are not under any obligation to consult the Shan State Government in administering the Union subjects in the Shan State, but, as pointed out above, they should do so out of courtesy and out of political expediency. This is a matter which can be settled to the satisfaction of everybody concerned administratively.

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Grievance No. 9

Interference in the Shan State politics and administeration.

Neither in the Shan State Government Blue Book nor in the course of discussion with the Shan State Ministers or political leaders and representatives of the Shan State people is there any indication as to who interferes in Shan State politics and administration. If there is any such interference, as alleged, it should be brought to the notice of the Union Government, if not, to the notice of the Prime Minister. We are sure steps will be taken at once to put a stop thereto.

There are also some more grievances put forward by Shan and Kachin political leaders in the course of their discussion with us.

First - They complain that though education up to the High School level is a State subject, yet it is completely overshadowed by the policy of the Union Government.

It is not the fault of the Union Government nor that of anybody else if the education policy of a State is overshadowed by the policy of the Union Government. If the State Education Minister allows the educational policy of his State to be overshadowed by the education policy of the Union Government, he does so not in the interest of one section of the Union but in the interest of the whole Union. In any event, this is a matter that can be easily solved by discussion between the State Education Minister and the Union Education Minister.

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Second – Their complaint is that practically no scholar from any of the States is awarded scholarship, either foreign or local, to go to a foreign country to prosecute further studies there.

As we know, scholarships are awarded only to scholars who attain a certain standard of education as fixed by the Union Government in consultation, as a rule, with the foreign country concerned.

It is useless to award a scholarship to a scholar, if the said scholar cannot follow the prescribed courses in a foreign country. To send such a scholar to foreign country for a high course of studies is not helping him but punishing him in that it helps him lose a few years of his precious life, which he can otherwise employ usefully in the interest of his own States.

There may, however, be cases where a scholar form a State does not reach the prescribed standard of educational attainments but his educational standard of attainments is such that he will be able to follow prescribed courses in a foreign country not only with profit to himself but to his State, his case may be considered favourably, or, perhaps, it may be better if a certain number of scholarships be set aside for scholars from the States.

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Constitutional Question

Now, dealing with the constitutional aspect of the case, what the Shan State Government and its people, supported to a certain extent by some Kachin State political leaders, say, as stated above, is that our form of Government is not federal; it is more of a unitary type than a federal type of Government. Under the present Constitution, the States, according to them, occupy an inferior position compared with that of Burma. All the powers, rights and privileges are concentrated in the hands of Burma and the Burmans. They want complete autonomy as promised by Bogyoke Aung San in the Panglong Agreement. The only way, according to them, to have that promise fulfilled is to make Burma proper a State equal in status, power and privilege to that of other States and to introduce a true type of Federal Government.

Now, what is meant by Federation? And what is meant by a true type of Federal Government.

Federation means an association of independent states for certain common purposes, in which the member states retain a measure of their original independence. As the association is free and voluntary, member states in law are free to leave the Union if they wish to. (See Dr. K.C. Wheare's Book 'Federal Government', 3^rd Edition, page 1)

Now, what is meant by a real or true type of Federal Government. The Shan State Government and tis people do not explain it in their 'Blue Book', but they broadly hint that their deal of a true of real type of Federal Government is like the Federal Government of the United States of America.

United States of America

We will therefore now examine what the Government of the United States of America is like. The American Constitution started with the federation of a few British colonies in America after they had thrown off the yoke of the British Crown.

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In their Federation they allotted a certain number of subjects to the Federal Government for administration. All the residuary subjects were reserved to the States. The Federal Government is free and independent in its own sphere; similarly the State Government is free and independent in its own sphere. The number of States which join the Federation from time to time now comes up to 51.

So far the American Form of Federal Government is excellent both in form and on paper. It is the ideal type of Federal Government. But what is it like in actual practice? As pointed above, 'Federation' means an association of independent States on a free and voluntary basis. As the Association is free and voluntary, any member State can leave the Federation at any time it chooses.

But when this theory was put to a test, it failed.

When a dispute arose between the Northern States and the Southern States in the middle of the 19^th Century (1861-65) over the slave question, the Southern States threatened to secede from the Federation. To prevent their secession, President Abraham Lincoln declared War.

If secession was allowed, it would break up the Union with the ultimate destruction of the nation.

Since then the Federal Government has been encroaching on the sphere of the State Governments in the name of national welfare and safety. The Governors of States at one of their annual conferences lament that they have now become puppets in the hands of the Federal Government. What thus becomes clear is that though in theory the American form of Government is federal, yet in actual practice it is gradually becoming unitary. (See 'Federal Government' by K.C. Wheare, 3^rd Edition and 'The Nation and the States: Rivals or Partners' by William Anderson.)

We will now examine the Federal Form of Government of other countries which profess and practise Parliamentary form of Government. They are Australia, Canada, South Africa, India and Switzerland.

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Australia

The Constitution and the form of Government of Australia are based more or less on the Constitution and form of Government of U.S.A., with certain changes to suit local conditions. What is said about the American Constitution and the form of Government is equally applicable with slight changes here and there to Australian Constitution and form of Government. (Compare K.C. Wheare's 'Modern Constitution' pages 28-29)

Canada

The case of Canada is opposite to that of the United States of America. It is also federal in form with the division of subjects between the Centre and the States. In the case of U.S.A., as pointed out above, only certain specified subjects area allowed to the Centre and the remaining subjects are reserved to the States. In the case of Canada, only certain specified subjects, limited in number, are transferred to the States and the rest of the subjects are reserved to the Centre. But what is relevant to our purpose in hand is that the Centre has got an overriding power over the States in that Centre can disallow any legislative measure passed by the State Legislature if it does not approve of it. Further, the head of State is a Lieutenant Governor, whom the Centre appoints and the Lieutenant Governor can give his assent or withhold his assent to any legislative measure passed by the local legislature. In that way the Centre can also interfere in the State administration. From this point of view, the Government of Canada, though federal in form, is unitary in reality. (Compare K.C. Wheare's 'Modern Constitution' page 28)

South Africa

The form of Government of South Africa, though in name, is federal, yet in actual practice it is not only unitary but it is almost a dictatorial form of Government in that it at its sweet will and pleasure can disallow any legislative measure passed by the local legislature. The States are not called States but are called Provinces. And further, the Centre has power to abolish the legislature of any State.

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India

The Government of India is federal in form in that there are States and there is a division of subjects between the Centre and the States, but what distinguishes her from the real type of federal form of Government is that the Centre has got an overriding power over the States. If a State is found to be mismanaging its affairs, the President on a resolution passed by the Council of States can take over the administration of that State under his direct control. (See Article 256, 257, 356 and 365 of the Constitution of India) Furthermore, the Federal Parliament can pass any law in respect of any transferred subject on a resolution passed by the Council of States. (See Article 249-951 of the Constitution of India). In this sense, it is against the principle of the right of secession and local autonomy which are the true characteristics of a real form of federal Government.

Switzerland

The Swiss form of Government is very much similar to that of the United States of America in that certain subjects are allotted to the Centre, reserving the rest to the Cantons. Each Government, that is central and the cantonal, is independent and sovereign in its own sphere. So far the type is a real federal type of Government but the Centre can override the laws passed by the Cantons through the Law Courts. All the Courts in Switzerland are enjoined by the Constitution to treat the laws based by the Federal Assembly as valid even though they transgress the field assigned to the canton. In this way the Swiss Government tend to be more unitary then Federal.

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There is thus no real type of Federal Government. Even if there is a real form of Federal Government on paper, yet in actual practice it becomes unitary. The reason for it is not far to seek. It is for national security and safety. In this modern life of stress and struggle for survival, a unitary type of Government is more essential than a federal type of Government on economic grounds. For economic development, planning is necessary. When it plans, it embraces not only a portion of the federal State but every unit comprised therein. (See 'Federalism and Economic Growth in Underdeveloped Countries' by U.K. Hicks and others.)

Realising this constitutional aspect of the Federal Form of Government of every Parliamentary democratic country and the modern trend of thought in the political and economic field, the Heads of States, members of State Governments and a great majority of the leaders and representatives of political parties of various States say that they do not insist that the Federal Form of Gvoernment as adumbrated in their 'Blue Book' should be taken as a basis for introducing a real type of Federal Government in our country. What they really want, they say, is a form of Federal Government that will not only strengthen but solidify the Union and in which States will have complete autonomy.

They further add that the Federal form of Government which they envisage should not contain features that will eventually lead to the break-up of the Union.

Even the few leaders and representatives of political parties who do not share these views of the majority say that they also want a Federal form of Government that will strengthen and solidify the Union, and in which States will get complete autonomy. According to them such a type of Federal Government is the one the Shan State Government set out in its Blue Book.

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FEDERATION AS SUGGESTED IN THE "BLUE BOOK"

We will now examine whether the Federal Government, as proposed in the Blue Book of the Shan State Government, will strengthen the Union or whether it will lead to the break-up of the Union and eventual destruction of our nation. As pointed above, they want Burma to be made a State equal in status, privilege, power and rights to the other States. As regards the structure of the Federal Government they want the Federal Parliament to consist of two Houses, Upper and Lower. To the Upper House, all States will send an equal number of representatives, i.e. if Burma proper sends ten representatives, other States will also send ten representatives each. As regards the Lower House, it will be elected, as at present, on a population basis.

The two Houses will be equal in power. The only power which the Chamber of Nationalities, which is the equivalent of the Upper House, now lacks is the power of financial control and the right to nominate a Prime Minister.

As regards the Central or Federal Government they suggest that it shall be composed of equal number of representatives from each State. As regards the Prime Minister, he will be elected by Federal Parliament at a joint session of the two Houses.

Under such a structure there will not and, in fact, cannot be a strong and stable Government. There will be constant bickering and quarrel among the members of the Central Government. Similarly, there will be a constant quarrel and fight between the two Houses. The Union will thus in no time break up.

The Federal Form of Government as proposed in the Shan State Government 'Blue Book' is thus not only unpractical and impracticable but eventually will lead to the break-up of the Union.

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The Shan State Government's proposed Federal Form of Government cannot for these reasons be accepted.

In fact, as stated above, the vast majority of the leaders and representatives of political parties of various States do not insist on having their proposed Form of Federal Government. They only want such a Federal form of Government that will suit them. What type of Federal Form of Government will thus be suitable? We will now examine our form of Government to see whether it can satisfy the demand of the State Governments and the State peoples.

The territories that are now comprised within the Union were all British territories. When the Second World War broke out in 1942, the British retreated to India, leaving their territories in the occupation of the Japanese. When the Japanese retreated in turn from Burma in early 1945, the sons of the soil were left in complete control, that is to say, the Burmans were in control of Burma proper, the Kayah people in control of Kayah, the Shans in control of the Shan States, the Kachins and the Chins in control of each of their Hill Tracts, until the return of the British Government. When the British Government returned and resumed control over those territories, their control was nominal and shadowy.

In those circumstances, the Burmese people pressed their claim to Independence earnestly and vigorously. When the Shans, Kachins, and Chins know that the Burmese people were going to get Independence, they took counsel with each other and decided to ask for Independence and join Burma in a federation. They, however, made two stipulations: One was that they should got complete autonomy and the other was the right to secede. The Kachin people did not claim the right to secede; they decided to remain permanently as part of the Union of Burma.

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So far two essential characteristics out of three of a true type of Federation are present. The characteristics are (1) association of free States on a voluntary basis and (2) the right to secede. The third remaining characteristic is the right to complete autonomy.

Now, if we look at the Legislative Lists, we shall find that there is a division of subjects between the Union Government and the State Government. Each Government is supreme and independent in its own sphere. One cannot encroach upon the sphere of the other.

We have thus all the essential characteristics of a true type of Federal Government present. Our Union Government is therefore more federal than unitary.

They say it is all right on paper but in actual practice it is not so. For instance, they say, take the case of Police and Education. These two are Transferred Subjects. Each State can raise a sufficient force of police to preserve law and order. So far it is all right, they say. They can get a sufficient number of men for the Police Force; but when it comes to the question of equipping the police force, they meet with a roadblock. They can get uniforms for the police but they cannot get sufficient number of arms and ammunition for the Police Force. Procurement and supply of arms and ammunition being a Union subject, the States must supply to the Union Government for supply of arms and ammunition. That is where the difficulty comes in.

They have to wait some time for weeks to get the supply of arms and ammunition. When they do get it, they do not get enough. Their police are thus not in a position to fight crime and criminals with any degree of success. The transfer of Police to the States as a State subject is thus illusory.

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Education, they say, is the same. Though it is a State subject up to the Matriculation level, yet their school syllabus and curriculum have to be based on the policy framed by the Union Government; otherwise their boys and girls have no chance to compete with the boys and girls of Burmese proper when they go to Rangoon to seek higher education.

Beside those two, there are other State subjects, they say, in the administration of which the hand of the Union Government is detected.

It is very unfortunate that the position relating to the administration of State subjects has been misunderstood. The procurement and of arms and manufacture ammunition is a Union subject. It is generally the case with every Federal Government. It has to be so for the sake of national security and safety. Therefore, when a State wants arms and ammunition, it must apply to the Union Government. Up to this stage it cannot be said that the Union Government interferes in the administration of a State subject.

Next stage is the supply of arms and ammunition. The supply may be inadequate for the needs of a requisitioning State. Because the supply is inadequate, it cannot be said that the Union Government interferes in the administration of a State subject. There may be reasons for the inadequate supply. We know personally why the supply has been inadequate. The reason is that the stock of arms and ammunition of the Union Government is not, and in fact, has never been plentiful. The police forces of the Union Government are, and, in fact, have never been fully equipped with arms and ammunition. The union Government itself has to depend on friendly Foreign countries for supply of arms and ammunition for its fighting forces.

The inadequate supply of arms and ammunition is thus not an interference in the administration of a State subject. The feeling that there is undue interference in the administration of a State subject is due to misunderstanding of a true legal and constitutional position. Misunderstanding in turn arises out of a casual manner in which some officials of the Union Government deal with State officials.

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We understand that the Union Government has already taken action in the matter.

As regards Education, if a State Government has to frame its educational syllabus and curriculum in accordance with the policy of the Union Government it does so in order to enable its boys and girls to hold their own when they go out into the world. This does good to the State and the Union.

The same is with the administration of other subjects. When examined properly and thoroughly, it is found that there is no interference and if there is any, it is capable of being corrected administratively.

In fact, what the Shan State Government and its people and what other State Governments and their people feel sore most about is their helplessness in relation to their own land, their own forests, their own mines, their own minerals and their inability to start and work any industry in their own State.

These subjects are Union subjects and, as such, they are being regulated and arranged by the Union Government. They say that they have to look on with folded arms while their natural resources, such as forests, mines, and minerals are being exploited by each others. They feel as if they were interlopers in their own State. That is not, they say, what they bargained for when they agreed with Bogyoke Aung San to join a Federation.

They think if they are allowed to manage, regulated and work their won forests and their own mines, they will be able to develop their own State to such an extent in no time that they will soon be able to catch up with Burma proper both economically and politically, as desired by Bogyoke Aung San.

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As regards land, they say it is mostly 'Ayadaw' land (their State land). As such they feel that their State Government should be allowed to deal with it as in the time of their forefathers. But now under our Constitution, their 'Ayadaw' land becomes Union land and it is the Union Government that deals with it.

As regards industries, they could not be started and worked by any State Government or by any private person during the time of the A.F.P.F.L. Government. The interpretation of the A.F.P.F.L. Government of item No. 34, under the heading 'General' of the Union Legislative List was that it was the Union Government that could start, work and develop any industry. This interpretation was upset by the Pyidaungsu Government in 1960.

Therefore, so far as industries are concerned, they do not now form any ground for grievance against the Union Government. Even as regards forests and mines, they should not afford any ground for grievance. If the matter is looked at and considered dispassionately, it will be found that the State Governments and their people do not suffer in any way. Under our Constitution and our own law, State Governments collect and enjoy royalty from forests and mines. State Governments and their people are at liberty to work forests and mines just as other people provided they comply with Union Government rules and regulations.

AS regards land also, if the matter is looked at dispassionately, it will be seen that it is the State Governments that collect and enjoy land revenue.

Such being the position, State Governments and their people do not suffer politically and materially. But unfortunately they do not look at it from this angle. All they know and feel is that they are not allowed to participate in the distribution of their own land and the working, regulating and development of their own forests and mines. In this respect their feeling of frustration is real and intense. We must do something to allay their feelings; otherwise, they may become desperate and their desperation may be a constant source of danger to the stability of the Union.

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But what we must not forget is that we, i.e. the people of the Union are the trustees of their natural resources for our coming generations. It is our duty to see that these natural resources are not damaged or wasted.

And on behalf of the trustees the Union Government is discharging this duty. The Union Government, as is well-known, consists not only of Burmese Ministers but State Ministers also. Whatever it may be, we must now find a way out, firstly, to satisfy the desire of State Governments and their people to participate in the working and regulating of their natural resources, and, secondly, to enable the Union Government to keep a control over these natural resources so that they may not be wasted or damaged. They only way out, which we can think of, it to have a Concurrent Legislative List. Into this list all subjects of controversy shall be entered. Both the Union Government and a State Government shall have legislative powers in respect of these subjects. Where there is a conflict between the State law and Union law, the latter small prevail over the former. The Union Government will generally deal with policy; whereas the State Government will generally deal with implementation. Each State Government will deal with its natural resources, such as land, forests, mines, and petroleum oil-fields situated in Burma proper. The kind of Concurrent Legislative List which we have in mind is similar to the one which we herewith attach as Annexure ('A').

The next subject of controversy is finance. It is a subject of friction between the Union Government and the State Governments not only in our country but also in every country which has a Federal Form of Government. Fortunately for us, at least for the time being, this problem has been solved by our Prime Minister, U Nu. For the financial year 1961-62 the Prime Minister formulated a method for the distribution of Union Funds between the Union Government and the State Governments as follows: -

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All receipts from purely Union subjects and returns from investments in Union Government enterprises minus the expenditure incurred by the Union Government on Union subjects and Union Government enterprises should be distributed between the Union Government and the State Governments on a population basis. This method has been approved and accepted by all the States, at least, for some time to try as an experiment.

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OTHER SUGGESTIONS IN THE BLUE BOOK

The last subject to deal with is the question of amending some or deleting others of the following provisions of the Constitution.

We propose to deal with them in serial order.

PREAMBLE – They object to the use of the term 'Frontier Areas' in the Preamble. 'Frontier Areas' was a term used by the British. It was in existence at the time of the framing of the Constitution. And, as such, it had to be recorded in the Preamble: such being the case, it is not necessary to amend the Preamble.

SECTION 8 – The reasons given for amending or deleting this Section are entirely beside the point. This Section deals with administration of non-State territories legislatively, executively and judicially. This Section should therefore be allowed to remain as it is.

SECTION 9 – They say the meaning of the term 'State' is clear enough in English but not so clear in Burmese. In our opinion, the Burmese version may not be so perfect and clear enough so as to enable us to understand what it really means. If there is any doubt about the meaning of the Burmese version, the English version can always be referred to for help. The English version is as official as the Burmese version. Section 9, therefore, should be allowed to stand as it is.

SECTION 23 (3) (4) (5) – Section 23 as a whole deals with economic rights and the right to own property. It has nothing to do with the requisition of private property. If the State wants to acquire private property, it must do so by appropriate legal process. What the Shan State Government and its people complain is that the Union Government used to acquire their peoples' land and other private property without either consulting the State Government or without payment of compensation. This is a matter which can be adjusted administratively between the State Government concerned and the Union Government. Section 23 should, therefore, be allowed to stand.

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SECTION 30 (1) (2) (3) – This Section deals with land. What the Shan State Government and its people state is that, as this Section stands, it is the Union Government that can deal with State lands. They say that every State should be allowed to deal with its own land. As we propose to recommend the transfer of land from the Union Legislative List to the Concurrent Legislative List, we feel that this Section, if our recommendation is accepted, should be amended appropriately.

SECTION 31 – The Shan State Government and its people want to have this Section amended in such a way as to enable a State Government to deal with the problem of its own workers. However, as this matter touches upon the question of National Security and Social Welfare, we feel that this matter should be treated as a Union subject, and left in the hands of the Union Government. This Section should therefore be allowed to remain as it is.

SECTION 91 – What the Shan State Government and its people say is that if Parliament delegates part of its legislative powers to representative bodies in the State, it will mean setting up a State within a State, causing confusion, friction, bickering and quarrel thereby, between State Councils and local bodies.

At appears, in our opinion, there is a good deal of substance in what the Shan State Government and its people state. When the State Council has no control over a representative or local body in the matter of legislation, it means setting up two rival bodies in a State.

We should, therefore, like to suggest the amending of this Section in such a way as to give powers to a State Council or a State Government to check, control and approve on behalf of the Parliament and the Union Government, all rules, regulations and bye-laws passed by local bodies.

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SECTION 93 (3) – The Shan State Government and its people say they see no reason why a State should want to surrender any of its territories or any of its powers and rights to the Union.

The answer is this: that it is not compulsory on the part of a State that it should surrender any part of its territories or powers and rights to the Union.

There may be occasion where it may become absolutely necessary for a State to surrender part of its territories or rights and powers. Unless it wants to, it needs not do it. It is only an enabling Section. This Section should, therefore, in our opinion be allowed to stand as it is.

SECTION 93 – As we propose to enter land, forests, mines, minerals and petroleum oil-fields in the Concurrent Legislative List, this Section 93, will have to be amended suitably.

SECTION 94 – The Shan State Government and its people say that before a state of emergency is declared in a State, by the President, the State Council concerned should be informed. If this suggestion is to be adopted it will nullify the effect of announcing a state of emergency. When an emergency arises, it must be dealt with promptly, or else it will be too late to deal with it.

Therefore, this Section, in our opinion, should be allowed to stand as it is.

SECTION 96 – The Shan State Government and its people object to the use of the words 'grants' and 'contributions' in the promise to Section 96. They say that by the use of such words they become suppliants instead of partners in a Federation. Not to wound or hurt their feelings, we suggest the use of more appropriate words, if possible, in place of the words 'grants' or 'contributions'.

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SECTION 122 – This Section is plain and its meaning is clear. There is, in our opinion, no objectionable feature about it. We think it should be allowed to stand as it is.

SECTION 128 – There is nothing objectionable abut this Section. We think that it should be allowed to stand as it is.

SECTION 131 – The Shan State Government and its people say that they have no objection to the Auditor-General submitting his report on the accounts of the Union and also his report on the accounts of the States to the Chamber of Deputies, but they also want him to submit his report on the accounts of a State to the State Council concerned. This is a matter which can be dealt with administratively.

Section 131 should, therefore, not be amended.

SECTION 154 – This Section has been dealt with by the Constitution Revision Committee. We agree with the views given by the committee and we feel that this Section should be allowed to stand as it is.

SECTION 150 – The Section, as it stands, is in our opinion, perfectly in accordance with the principle of democracy an which our Constitution is based. We think that it should be allowed to remain as it is.

SECTION 162 – The Shan State Government and its people say that as the Section stands it looks as if the State Council will have to be kept in perpetual session because they say that the Head of the State must consult the State Council in all matters pertaining to the Transferred Subjects.

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If the Section is read as a whole, the meaning will be perfectly clear. In all matters connected with the Transferred subjects, the will of the State Council is to prevail even over the opinion and decision of the Head of the State, as in the case of Parliament. It is thus not necessary to keep the State Council in perpetual session. If it meets periodically, as in the case of Parliament, it satisfies the requirements of the law.

In other matters not connected with the Transferred Subjects, the Head of the State, if he thinks that these matters relate to the State, must consult the State Council. If and when he must consult the State Council depends upon the urgency or otherwise of the matter. If the matter is urgent and if the State Council is not in session, it may be necessary to call a special session of the State Council. If ther is no rule to that effect yet, a rule should be framed.

We, therefore, feel that this Section should be allowed to remain as it is.

SECTION 164 – We feel there is no objectionable feature about this Section, inspite of the objection made by the Shan State Government and its people.

This Section should, in our opinion, be allowed to stand as it is.

SECTION 219 – If we are going to enter forests, mines, minerals and petroleum oil-fields and land in the Concurrent Legislative List, this Section may have to be amended in the same way as Section 93.

SECTION 222 – The Shan State Government and its people say that according to this Section 222, Burma should be a State equipped with all necessary paraphernalia as in the case of other States.

If we look at the Constitution of the German Empire before the First World War, we shall find that the Prussian Government was, more or less the German Government and the Prussian Chancellor was the German Chancellor.

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Our Constitution is somewhat analogous to the German Constitution of the pre-First World days.

The Union Government is the Government that rules Burma proper. It is therefore not necessary to set up a separate Government for Burma proper, thereby entailing enormous cost and administrative difficulties. As it is, the Constitution is working smoothly and amicably. It is therefore not necessary to make Burma a State as suggested.

We may note that the Head of the Kachin State also put forward some suggestions as to the amendment of certain Sections of the Constitution. We feel that it will be more fitting for Dr. E Maung's Constitution Revision Committee to deal with them than our Committee. However that may be, most of the suggestions and they have been dealt with above.

RECOMMENDATIONS

Constitution

We cannot recommend the adoption of the type Federal Government as proposed by the Shan State Government and its people. It is unpractical and impracticable. It contains features which will inevitably lead to the break-up of the Union in the foreseeable future.

On the other hand, our type of Government, in the circumstances prevailing now, it the ideal type of Government. It has all the essential characteristics of a Federal Government, in that it is an association of States on voluntary basis; the States other than the Kachin State and the Karen State have the right to secede on fulfillment of certain conditions and all States have the right to enjoy autonomy.

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But the Shan State Government and the Governments of other States complain that they do not have full and complete autonomy, in that they are denied the right to manage, regulate and develop their own natural resources, such as land, forests, mines, minerals and the right to start and work industries.

On looking at the Legislative Lists, we feel there are two forces, centrifugal and centripetal, at work. We must strike a happy medium between those two forces. We, therefore, recommend introducing a Third Legislative List called the Concurrent Legislative List. To that List we recommend the transfer of land, forests, mines, petroleum oil-fields and industries and such other subjects as may be of controversy from the Union List.

We propose that the Union Government should generally deal with the question of policy applicable to the whole Union and the State Governments should generally deal with the question of the implementation of the aforesaid policy in their respective States. The Union Government will also deal with the question of implementation in so far as the land, forests, mines, minerals, petroleum oil-fields in Burma proper are concerned.

The power of implementation conferred on the States must be regulated by law. The power must be conferred in such a way as is commensurate with the ability of each State to successfully carry out the policy of the Union Government financially, technically and administratively.

Provision must also be made for cases where a State cannot exercise the power of implementation for lack of either financial resources, or technical knowledge or lack of administrative experience. In implementing its policy in such State, the Union Government will seek the co-operation of the State Government concerned. By so doing, the State Government concerned will gain experience and in due course can take over the power of implementation fully.

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We should also like to suggest reserving the power or implementation to the Union Government in respect of forests, mines, minerals and petroleum oil-fields situated near the common border with foreign countries. The working of such forest, mines, minerals and petroleum oil-fiends near the common border with foreign countries may sometime involve dealing with Foreign Powers. And dealing with Foreign Powers is a Union subject. Therefore, if the power of implementation which relates to borderland-forests, mines, minerals and petroleum oil-fields is not reserved to the Union Government, it may complicate matters.

As we recommend introducing a Third Legislative List called the Concurrent Legislative List and as we recommend the transfer of forests, mines, minerals, petroleum oil-fields and land from the Union Legislative List to the Concurrent Legislative List, we feel that the Union Legislative List and the State List must be amended, where necessary, and the following Sections, 30 (1) (2) (3), 93 and 219 will have to be amended in the light of our observations made thereon.

No other amendment is, in our opinion, necessary except as regards Sections 91 and 96. These two Sections may have to be amended, in accordance with our observations made thereon, if the Government agrees with us.

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REDRESS OF ALLEGED GRIEVANCES

Administration

1. Though constitutionally and legally the Union Government is not bound to inform the States of what it intends to do in the States with regard to the administration of the Union subjects therein, yet if the Union Government does so out of courtesy, it will not only remove possible misunderstanding but will improve official and social relations between the two.
2. A certain proportion of local men, if qualified and efficient, may be appointed to both the Senior and Junior ranks of the Union Services operating in the States.

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Social and official relations between the Union

Officials and State Officials and State people

Union Government officials, both Civil and Military, serving in the States, may be instructed to deal with State officials and State people in a brotherly fashion and to pay due regard to State Ministers.

Education

In awarding scholarships, local or foreign, to go to foreign countries to pursue higher studies, the claim of students from the States, if they reach a certain standard of attainment, may be considered favourably.

GOVERNMENT ADVISORY COMMITTEE

Dated, the 8^th January 1962.

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ANNEXURE – A

THIRD SCHEDULE

List III. Concurrent Legislative List.