LL,M First Year, First Semester Group Presentations Title

Law 611(A) Criminal Law I

Question
3. Issue relating to rape case
Answer;
Rape is the act of physically forcing a woman to have sexual intercourse, an act of

sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a

sexual intercourse with a girl under the age of consent, which age varies in different states

from ten to eighteen years. Rape is not a crime against the person of a woman, it is a

crime against the entire society. It destroys the entire psychology of a woman and pushes

her into deep emotional crisis. It is only be her sheer will-power that she rehabilitates

herself in the society which, on coming to know of the rape, looks down upon her in

derision and contempt. Rape is, therefore, the most hated crime. It is a crime against the

basic human rights.

In a rape case the following two essentials are require, (1) sexual intercourse by a

man with a woman. (2) The sexual intercourse must be under circumstances falling under

this section. The sexual intercourse must be with a woman. The term man is defined as a

male human being of any age. The term woman is defined as a female human being of age

under this section.

Under section 375 of Penal Code, a man is said to commit rape who except in the

case hereinafter excepted, has sexual intercourse with a woman under circumstances

falling under any of the five following descriptions. First-against will, secondary-without

her consent. Thirdly-with her consent, when her consent has been obtained by putting her

in fear of death or hurt, fourthly-with her consent, when the man knows that he is not her

husband, and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married. Fifthly – with or without her

consent, when is under sixteen years of age.

Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under

thirteen years of age, is not rape.

To have sexual intercourse with a woman against her will is rape. The expression

"against her will"; means that the act must have been done in spite of the opposition of

the woman. Non resistance on the part of the woman does not amount to consent. It will

all depend on the facts and circumstances of each case. At the same time distinction

between "will" and "consent" also cannot be overlooked.

Union of Myanmar Vs Lin Htain Oo (4) The acquittal sentence of the accused for

section 366 and 376 by court (Mandalay) was unlawful. So the appeal was submitted.

According to the witness, Ma Wah Wah denied to go with together by consensual. Even

though the accused took Ma Wah without agreement cannot be said he didn't committed

the offence.

Consent given by a woman of unsound mind is of no valid. She was being

incapable of giving consent from defect of understanding, it was held to have committed

rape. Consent given by an intoxicated woman is of no valid. It is not necessary for the

defense to prove that sexual intercourse was with the consent of the woman. Where the

accused made false promise of marriage to a girl and thus obtained her consent to sexual

intercourse, and it was found that she was a minor and her consent was not consent in

law. The only conclusive prove of evidence of a girl's age may be the birth certificate but

where such a document is not available the court or the judge has to base its conclusions

upon all the foots and circumstances disclosed on examining all the physical features of
the person whose age is in question, in conjunction with such testimony as may be

available. Where there was a controversy as to the age of the victim and the birth

certificate showed which was also consistent with other evidence. The medical opinion

based on ossification test cannot be relied upon in the face of a more reliable evidence,

such as the school admission certificate.

Pa Hta Sa Vs Aye Naut (September 29, 2009) Criminal Appeal No. (106). The age of

the child must be analysed according to the Rules 68 related to the child Law, that was

passed by Rules 72(A) related to the child Law. The birth date in the school registration of

the child is priority.

Union of Myanmar Vs Mg Moe @ Mg Thein 1995. The girl cheated her age and so he

thinks that she was aged cannot be taken into account. If under age he committed

offence.

The explanation says that penetration is sufficient to constitute rape. The only thing

to be ascertained is whether the private parts of the accused did enter into the person of

the woman. It is not necessary to decide how far they entered. For the offence of rape to

be committed, it is not necessary that there should be complete penetration.

In respect of burden of proof, in a case of rape, the burden always lie on the

prosecution. There is an initial presumption of innocence of the accused and the

prosecution has to bring the offence home to the accused by reliable evidence. The

accused is entitled to the benefit of every reasonable doubt. If the accused failed to prove

this his conviction would be legal.

It is the duty of the prosecution if , according to the medical jurisprudence, medical

examination was capable of yielding conclusive results, to ensure that examination within

a period of time when conclusive results could be achieved. The accused is entitled to say

that if a medical examination of the vital or the material parts of his body had been
conducted, he would have been in the position to show that the condition of those parts

negative the possibility of his guilt.

There are number of reasons why opinion evidence by ordinary witness is not

permitted. One is that an opinion may be based on a bunch rather than actual knowledge

or expertise and would therefore be unreliable. In a criminal trial the ultimate issue of

innocence or guilt may turn on a complex technical issue such as DNA evidence, the

interpretation of medical evidence. The judge must have the detailed technical knowledge

require to decide. It is clear that this is where the combination of expert evidence and the

expert witness forms an important part of many criminal and civil.

Mg Mg Vs Socialist Republic of the Union of Myanmar 1976 Pg-40, Merely the sperm

did not find on Woman's cloth, the accused would not be said he did not committed rape.

Informed to the people as soon as she was raped is the vital fact of the case to prove the

rape.

The dying declaration of the deceased person is admissible in evidence on a

charge of rape. Where in a rape case, the victim committed suicide before the trial and

was not available for examination but the other evidence proved the guilt of accused, it

was held that non-availability of the victim was no ground for acquittal.

In respect of punishments for rape. The Pyidaungsu Hluttaw was passed by The

Penal Code amendment law (1aw no-10) in 25.3 2019. According to section 376 of this law,

(1) whoever commits rape except the offences of rape contained in sub-sections (2) and

(3), shall be punished with imprisonment for a term of twenty years or with imprisonment

of either description for a term which may extend to ten years, and shall also be liable to

fine. (2) Whoever commits rape against a woman who is his own wife and is not under

twelve years of age, shall be punished with imprisonment of either description for a term

which may extend to two years or with fine or with both. (3) Whoever commits rape
against a woman who is under twelve years of age shall be punished with imprisonment

for life, or with imprisonment for a term of twenty years.

Section 376 is non-bail able offence and warrant case. The accused person would

be in jail first and file the suit at Court. In an uncertain evidence, he would not fair.

According to medical evidence, the police's procedure, a suit must be firmed. To be justice

for both parties, the new law should be enacted.

Conclusion

™ Whoever commit rape under Section 375 of Penal Code, he will be punished

under Section 376 of this Act.

™ To be a rape, there would be sexual intercourse with a woman without her

consent, use by force, under age.

™ The opinion of experts, other circumstances, social behavior and morality are

need to be taken into consideration by the judge.

™ The right of private defense which extend to causing death can exercise in

rape case. Sexual assault on a child is an act of irreparable violence and

trauma for the Victim.

™ So, rape case is a social crime that commit on the Victim and our society. We

have to prevent effectively.

 The Formation of a Company

The following types of body corporate may be incorporated and registered under the Myanmar

Companies Law, 2017:

(a) A company limited by shares, which may be either:

(i) a private company which may have no more than 50 members (not including persons who are in the

employment of the company); or

(ii) A public company which may have any number of members;

(b) A company limited by guarantee which may have any number of members; and

(c) An unlimited company which may have any number of members. (Section.2, The Myanmar

Companies Law, 2017)

Essential requirements of companies

A company registered under this Law must have:

(i) A name;

(ii) A constitution;

(iii) At least one share in issue (provided that a company limited by guarantee need not have a share

capital);

(iv)At least one member;

(v) Subject to sub-section (VI) at least one director who must be ordinarily resident in the Union;

(vi) If the company is a public company, at least three directors, at least one of whom must be a

Myanmar citizen who is ordinarily resident in the Union; and

(vii) a registered office address in the Union. A company may appoint a company

secretary and have a common seal. (Section.4 (a), the Myanmar Companies Law, 2017)

Company Names

Since a company is an artificial person, it can be identified only by its names, which is

thus of considerable importance.

If a company limited by shares is to be a private company, the last word of its name must be ‘limited’ or

‘ltd’, and if it is to be a public company, the name must end with the words ‘public limited company’ or

‘plc’.

A company must not be registered by a name if, in the opinion of the Secretary of State, the use

of the name by the company would be a criminal offence. Statute has prohibited the use of certain words

that have an association with recognized

charitable organization’s.

For example, a company’s name may not include the words ‘Red Cross’ or ‘Geneva Cross’

without the authority of the Army Council, nor the word ‘Anzac’ without the authority of the Secretary

of State for foreign and Commonwealth Affairs.

The name “Virgin Mary’s” in any context associated with co law, whether religious or not, was

likely to cause offence to members of various religious groups and therefore the use of such a name was

disallowed.1

In which the defendant company was prohibited from continuing to import watches made by a

Swiss company, Baume and Mercier SA, marked ‘Baume and Mercier’, which the public might confuse

with the ‘Baume’ watches which the plaintiff company had sold for about 80 years2.

Under S.25 (c) of the Myanmar Companies Law, 2017, except with the previous consent in

writing of the Union Minister no company shall be registered by a name which- (i) contains any of the

following words, namely, “National Government”, “State”, “Central Bank”, “Union Government”,

“President”, "Ministry" or any word which suggests or is calculated to suggest the patronage of the

Government of Myanmar or of any Ministry, Department, Office or Agency thereof; or (ii) contains the

word “Municipal”, or any word which suggests or is calculated to suggest connection with any state,

regional, municipality or other local authority or with any society or body incorporated by applicable

law:

1
Little v Australian Securities Commission[1996]
2
Baume and Co Ltd v A H Moore Ltd [1958] RPC 226
2.2 Constitution

Each company will have a constitution the effect of which is to bind, in accordance with its

terms, the company and the members thereof to the same extent as if they respectively had been signed

by each member and contained a covenant on the part of each member, the member’s heirs, and legal

representatives, to observe all the provisions of the constitution, subject to the provisions of the

Myanmar Companies Law, 2017.

-A company is formed by one or more persons subscribing their names to a memorandum of association

and by complying with the Law’s registration requirements. A company may not be formed for an

unlawful purpose. It is not the case that a purpose must involve the commission of a criminal offence or

a tort to be regarded as unlawful.

For example, it is not a criminal offence to trade as a prostitute but in R v Registrar of Companies,

exparte Attorney General [1991] BCLC 476 it was held that the Registrar did not have to register a

company set up to engage in prostitution. If the Registrar refuses to register a company then this

decision can be challenged by judicial review.

Requirement for and effect of the constitution

Section (11) of Myanmar Company Law 2017 in provided that

(a) Each company will have a constitution the effect of which is to bind, in accordance with its terms,

the company and the members thereof to the same extent as if they respectively had been signed by each

member and contained a covenant on the part of each member, the member’s heirs, and legal

representatives, to observe all the provisions of the constitution, subject to the provisions of this Law3.

(b) The company, the board, each director and each member of the company will have the rights,

powers, duties and obligations set out in this Law except to the extent that they are modified, in

accordance with this Law, by the constitution.

(c) Each of the members of the company named in the application for incorporation and each subsequent

member shall be deemed to be bound by the constitution.

3
Section 11 (a) of Myanmar company Law 2017
(d) All money payable by any member to the company under the constitution shall be a debt due from

the member to the company.

Contents of a constitution 4

(a) The constitution may contain the matters contemplated in this Law for inclusion and such other

matters that the company wishes to include, provided that at all times the constitution has no effect to

the extent that it is inconsistent with this Law.

(b) At the election of the members, the constitution may set out the objects of the company.

(c)The constitution must state that the registered office of the company will be situated in the Union.

(d)Subject to sub-section

(e), the Memorandum of Association, any Articles of Association and any other constituent document of

an existing company shall take effect as the constitution of such company following the commencement

of this Law, provided that at all times the constitution has no effect to the extent that it is inconsistent

with this Law.

(f) The objects expressed in the former Memorandum of Association of an existing company will

(unless removed by the members voting to amend the constitution in accordance with the requirements

of this Law) continue to apply until the end of the transition period. The objects will be deemed to have

been removed after this time unless a notice in the prescribed form confirming the passing of a special

resolution to maintain them is filed with the Registrar. This sub-section is without prejudice to

section29.

It is the function of the Memorandum of Association to delimit and identify the objects in such

plain and unambiguous manner as that the reader can identify the field of industry within which the

corporate activities are to be confined. And it is the function of the courts to see that the company does

not movie in a director away from the field. That is where the doctrine of ultra vires comes into play in

relation to joint stock companies.5

4
Section (12)
5
Singh A, ‘Company Law’, Eastern Book Company, 15th Ed., 2007 (p. 48)
 The doctrine has been affirmed by the Supreme Court in India in the case of Lakshmanaswami

Mudaliar v. Life Insurance Corporation of India 6wherein the court held that the directors of a company

were authorized to make payment towards any charitable or any benevolent object or for any general

public, general useful object. The payment made towards the same was held by the court as ultra vires.

The court said that the directors could not spend the company’s money on any charitable institutions or

any general object they choose. They could spend for the promotion of only such charitable objects as

would be useful for the attainment of the company’s own objects.

Alteration of Memorandum of Association is an important exercise through which the company

brings about the required flexibility which is pertinent to its existence and survival as an entity. It is a

precondition before the company can initiate any drastic change in its ‘shape or structure’. As what is

now clear from the discussion above it is clear that any act of the company has to be within the limits set

by the Memorandum of Association.

Alteration of constitution Section (17) Subject to the provisions of this Law, and to any

additional conditions contained in its constitution, a company may, by special resolution, alter or add to

the provisions of its constitution, and any alteration or addition so made shall be as valid as if originally

contained in the constitution, and be subject in like manner to alteration by special resolution.7

Procedure on approval of the alteration Section (18)

(a) Notice in the prescribed form together with a copy of the constitution as altered, shall, within 28 days

from the date of the passing of the special resolution to amend it, be filed by the company with the

Registrar, and he shall register the same and the certificate shall be conclusive evidence that all the

requirements of this Law with respect to the alteration have been complied with, and thenceforth the

constitution so altered shall be the constitution of the company.

6
AIR 1963 SC 1185
7
Section 17 of Myanmar Company Law 2017
(b)The Court may by order at any time extend the time for the filing of documents with the Registrar

under this section for such period as the Court thinks proper.

Format of constitution8

Section (16) the constitution of a company:

(a) Must be prepared in Myanmar language;

(b) May also be prepared in English language (in addition to Myanmar language)

(c) Must be divided into paragraphs numbered consecutively.

2.3 Registration

(a) When the Registrar receives a completed application which upon any necessary examination meets

the requirements of this Law, the Registrar must:

(i) Register the application; and

(ii) Issue a certificate of incorporation which states:

(A) The company's name;

(B) The company's type;

(C) That the company is incorporated and registered as a company under this Law;

(D) The date of registration; and

(E) Any other matters that may be prescribed.

(b) The Registrar must keep a record of the registration.

(c) The Registrar may not require the submission of any other documents in connection

with the registration other than those referred to in sub-sections 6(b) and (c) or save as

may be prescribed by the Union Minister. 9

From the date of registration mentioned in the certificate of incorporation, the members named in

the application shall become members of the company having a separate legal personality and the name

8
Section 16 of Myanmar Company Law 2017.
9
(Section.8, The Myanmar Companies Law,2017)
contained in the certificate of incorporation. Without limiting section 5 or any other provision of this

Law, the company will be capable forthwith of exercising all the functions of an incorporated company,

and have perpetual succession10.

A certificate of incorporation given by the Registrar shall be conclusive evidence that all the

requirements of this Law in respect of registration have been complied with, and that from the date of

incorporation stated in the certificate the company is incorporated and duly registered under this Law11.

10
Section 9 of Myanmar company Law 2017
11
(Section.10, The Myanmar Companies Law, 2017)
 Right of Orasa

An Orasa child is the first-born legitimate child who is competent to undertake the

responsibilities of the deceased parent. The status of Orasa does not depend on the death of the parent of

the same sex, may be attained even before the death of any parent.12

The essential three conditions of the existence of the status of Orasa, according to the decision of

the Judicial Committee of the Privy Council, are as follows:-

(i) The child must be legitimate,13

(ii) The child must be natural-borne14

(iii) The child have attained majority15

(iv) Be, at the date upon which majority is attained, the eldest child of the family and competent to assist

in the discharge of the duties of the father or mother, as the case may be16

According to the Dhammathats when the eldest-born son is incompetent to assume the duties and

responsibilities of the father the next son may become Orasa provided that he is otherwise fit to become

an Orasa.17.

the claimant for Orasaship may be either a son or a daughter who is not a minor.18 But a kittima

child cannot claim to be an Orasa.19There cannot be two Orasas in the same family, that is to say, there

cannot be an Orasa son and an Orasa daughter or two sons or two daughters at the same time in the same

family.20

There are several senses in which the term "Orasa" is employed. It is used to denote:-

(i) The child who acquires a vested interest to the extent of a quarter of the parental estate on the death

of the parent of the same sex;

12
Kirkwood Vs Maung Sin, 2 Ran (PC), PP- 693 (787).
13
Ma Hla Vs Maung Shwe Yin, 1 Ran, P-370.
14
Maung Po Ann Vs Ma Dwe, 4 Ran (FB), P- 184.
15
Tun Myaing Vs Ba Tun, 2 L.B.R, P- 292.
16
Kirkwood Vs Maung Sin, 2 Ran (PC), PP- 693 (784).
17
Ma Mya Vs Maung Po Thin , P.J, P- 585.
18
U Tun Gywe Vs Ko Ko Gyi, 4 B.L.J, P- 67.
19
Maung Po An VS Ma Dwe, 4 Ran (FB), P-184.
20
Maung Sin Vs Mrs.Kirkwood, 11 L.B. R (FB),P-220.
(ii) The eldest child who, after the death of one parent of either sex and on the remarriage of the

surviving parent, has a claim to a quarter share in the parental estate:21

(iii) The eldest child who pre-deceases one of or both the parents but leaves behind children who are

entitled to an equal share with their uncles and aunts in the estate their grand-parent, in spite of the fact

of their being out-of-time grandchildren.22

In Myanmar customary Orasa child can entitle Quarter share on parental estate from one parent

according to orasa right. The orasa child have this right by two ground, first ground is when the death of

parent and second ground is when surviving parent’s remarriage.

The Orasa is entitled to:-

(i) Claim a quarter share of the parental estate on the death of one parent, from the surviving parent.23

ii) Claim a quarter share of parent’s estate on the remarriage of the surviving parent after the death of the

parent24

(iii) Transmit, by dying before his or her parents, to his or her children a right superior to that of an

ordinary grandchild by a pre-deceased child.25

An eldest-born daughter having all the qualification of an orasa child can acquire a vested

interest in her parental estate when the mother remarries after the death of the father.26

In a case27 the judicial Committee of the Privy have decided that where after the death of

the wife the husband partition his estate with his atet children and marries again and take away his share

with him to the new family, on his atet children cannot claim to inherit that property from his window.

Where a Burman Buddhist has two wives and by the first wife he has children but by the second

wife he has none, and he live with the second wife and works with her, on his death the orasa son, a

21
Tha Tu Vs Maung Bya, 4, L.B.R, P-181.
22
U Maung Maung Vs Ma Tin, 1940, A.I.R (Ran),P- 39.
23
Kirkwood Vs Maung Sin, 2 Ran (PC), PP- 693 (784).
24
Maung Po Khin Vs Maung Tun Yin, 4 Ran, P- 207.
25
Chan Tha Vs Mi Hla Pyu, 9 B. L. T, P- 95.
26
U Maung Maung Vs. Ma Tin , A.I.R.,1940. Ran.,p.139
27
Ma Thaung Vs. Ma Than 5 Ran. 17 (P.C) B.L.J.,333
child by the first wife is not entitled to any share in any property jointly acquired by his father and his

second wife.28

On the death of the parent

Manugye say, “when the father has died the law for the partition of the inheritance between the

mother and the son if as follows; let the eldest son have the riding horse, elephant, goblet, betel

apparatus, sword, cloths, ornaments, and of the slaves, the betel carrier and two water carriers; let the

mother have her clothes and ornaments, goblet apparatus and all female slaves. Let the residues be

divided into four parts of which let the eldest son have one and the mother and younger children three.29

On the death of the parent of the same sex, the orasa can claim his vested quarter share of

the parental estate from the surviving parent of the opposite sex, within 12 years of the death of the

parent of the same sex30. Notwithstanding the death of the surviving parent within these 12 years. The

right does not lapse on the death of the surviving parent. If the orasa dies in the meantime, such share

devolves on his or her heirs or legal representatives, as the case may be.31

The orasa is entitled not only to one –fourth of the parent estate at the death of the parent,

but also to mesne profits for three years preceding the year of demand from the surviving parent.32

The orasa is entitled to claim a quarter share of the joint estate of his parents existing at the time

of the death of the parent, from the surviving parent. The property to be divided is the property which

existed at the time of the death of the parent, and not the property existing at the date of demand nor

such estate to which surviving parent might be legally entitled.33

On the death of one of the parents the orasa child can claim a quarter share of the parental estate

from the surviving parent of the opposite sex. Thu an orasa son can claim a quarter shar of the parental

estate on the death of his father from the surviving mother as also mesne profits. Similarly Orasa

28
Maung Thein Maung Vs. Ma Kywe, 13 Ran., 412 (F.B.)
29
Managye Book 10, chapter 5
30
Maung Tun Tha vs. Ma thit, 9 L.B.R.,56 (P.C)
31
S. C. LAHIRI, Principles of modern Burmese Buddhist Law, Six Edi P.231
32
S. C. LAHIRI, Principles of modern Burmese Buddhist Law, Six Edi P.233
33
Maung Sein Ba Vs. Maung Kywe , A.I.R.1936.,Ran,p.167
daughter can claim a quarter share of the parental estate on the death of the mother from surviving

father.34

But an orasa son cannot claim a quarter share of the parental estate on the death of his mother

from the surviving father. Similarly an orasa daughter cannot claim a quarter share of the parental estate

on the death of her father from the surviving mother.35

On the death of the parent leaving no children except an orasa child, if the surviving parent

remarries the orasa child, who has not claimed his or her share as orasa on his or her parent’s death, is

entitled to claim, within 12 years of the remarriage, one-half of the estate brought by surviving parent to

his or her remarriage.36

Ground of surviving parent’s remarriage

On the ground of surviving parent’s remarriage on the death of one parent if the surviving

parent remarries the orasa must claim the quarter share within 12 years of the remarriage or before the

death of the surviving parent whichever is earlier. If the orasa keeps quiet for 12 years then the claim

becomes barred by the law of limitation. If the orasa does not claim the right and the surviving parent

dies the right lapses.37

This was the law on the point until Ma E Mya’s case established the principle that on the death

of one parent, if the surviving aren’t remarries, the Orasa must claim the vested quarter share within 12

years of the remarriage and if the orasa dies in the meantime, such share devolves on the orasa’s heirs or

legal representative.38

From this it follows that the orasa’s vested right does not lapse on the death of surviving parent

before the expiry of the statutory period of 12 years.39

When on the death of one parent the orasa has already taken his or her quarter share from the

surviving parent, he or she cannot claim a fresh quarter share on the remarriage of the surviving parent.40

34
S. C. LAHIRI, Principles of modern Burmese Buddhist Law, Six Edi P.223
35
Ibid.
36
U Tauk Vs. Ma Ohn Yin, A.I.R. 1939. Ran.,P.167
37
Ibid, P.232
38
Ma E Mya Vs. U Pe Lay, 3 Ran.,P.281
39
S. C. LAHIRI, Principles of modern Burmese Buddhist Law, Six Edi P.232
 Hence it may be said that the right of the orasa to claim a quarter share either on the death of one

parent of the same sex or on the remarriage of the surviving parent of the same sex is vested right.41

After partition of the parent’s estate, either on the death of one parent or on the remarriage of the

surviving parent, the orasa retains no further claim in the estate of the surviving parent and step-

parent.42

40
Ibid.
41
Maung No Vs. Maung Po Thein, 1 Ran, 363
42
S. C. LAHIRI, Principles of modern Burmese Buddhist Law, Six Edi P.231
LL,M First Year, First Semester Group Presentations Title

Law 614(A) Constitutional Law I

Question
4. The amendmend of the constitution

Answer
The modern constitutional state is necessarily nationalist in background and democratic in
tendency. In the making of a constitutional state the sense of national unity may at first be concerned
rather to establish the independence of the group than to achieve the liberty of its individual members,
but ultimately it generates the driving power for the attainment of popular rights.
The objects of a constitution are-
(a) to limit the arbitrary action of the government;
(b) to guarantee the rights of the governed; and
(c) to define the operation of the sovereign power.
Then, concerning with the definition of constitution, world constitutionalists expressed and
colored the state constitution as follows-
(a) Constitution is the pillar of the State.
(b) Constitution is the mirror of the State.
(c) Constitution is the basic law of all laws of the land.
Some states in the world named and called their state constitutions as
(a) basic Law (or)
(b) fundamental Law (or)
(c) State Law
Load Bryce defined a constitution as‚ a frame of political society, organized through and by law,
that is to say, one in which law established permanent institutions with recognized functions and definite
rights.

Permanent institutions mean the legislative organ, the executive organ and the judicial organ
which are prescribed, mentioned and built in the constitution.
According to C.F Strong, a true constitution will have the following facts-
(a) how the various agencies are organized;
(b) what powers is entrusted to those agencies;

(c) in what manner such power is to be exercised

Here, Agencies are legislative organ, executive organ and judicial organ of the state
which are built in the constitution. Its organs, their functions and powers are definitely arranged.
According to Wade and Phillips, Constitutional Law means the rules which regulate the structure
of the principal organs of government and their relationship to each other, and determine their principal
functions. These rules consist both of legal rules in the strict sense and usages, commonly called
conventions, which without being enacted are accepted as binding by all who are concerned in
government.

Constitution implies any regular form or system of government. Law implies a binding rule of
action to which men are obliged to make their conduct comfortable.
A constitution lays down the general and the fundamental principle on which the power as of a
state are to be exercised. In this sense, constitutional law is often described as the fundamental law of the
Land. The main object is to define the orbit of the sovereignty.
When we speak of constitutional law, we speak of that law which comprises the collection of
rules which establish and regulate or govern the country.

It includes all rules which define the members of the sovereign power, all rules, which regulate
the relations of such members to each other, or which the sovereign power or the members thereof
exercise their authority.

Classification of Constitution

According to C.F Strong, Constitution can be classified in five ways.

(a) classified by nature of State;
(b) classified by nature of Constitution;
(c) classified by nature of Legislature;
(d) classified by nature of Executive;
(e) classified by nature of Judiciary.

Nature of Constitution

We can classify the Constitution by studying its nature: Written Constitution or Unwritten
Constitution (Codified or Uncodified) Rigid Constitution or flexible Constitution.
Written Constitution or Unwritten Constitution

A written constitution is one regarded as a document of special sanctity. A constitution is

generally called unwritten one which has grown up on the basis of custom rather than of written law.
 ‘Written’ and 'unwritten' classification may be possible to adopt by treating it as dealing, first,
with the degree of codification, second, with the degree of written detail; and thirdly, with the origin of
the written text document.
No Constitution will be completely ‘written’ or completely ‘unwritten’, completely ‘codified’ or
completely ‘uncodified’, completely ‘rigid’ or completely ‘flexible’. The aim will be to establish the
degree of the classificatory attribute.
Many Constitutional texts deal only with the skeletal outlines of topics, leaving the details to be
regulated by organic laws or ordinary statutes.
Constitutions of India and Mexico have many articles embodying details that one usually expects
to find in ordinary laws. But, Indonesia provides an example of what might be called a ‘mini-text’; it
displays enough detail to maintain interest while hardly covering the subject. (Indonesia Constitution has
only 37 articles) Every modern state has its own written constitution.
The United Kingdom is frequently cited as example of an ‘unwritten’ constitution. There is a
great deal of statute laws that could properly be constitutional law, and much of it treats of fundamental
instructions in the same way that a ‘written’ constitution does.
There are statues that deal with the formation of United Kingdom e.g. Statutes for the limitation
of the power of sovereign, for the succession to the throne and for a regency; other statutes deal with the
House of Lords, the House of Commons and Parliament, with the judiciary, with the armed forces, with
local government, with citizenship and with emergency power.
So this surely makes absurd the use of the term ‘Unwritten’ in respect of British constitutional
agreements, anyhow statues listed above are exercised as British Constitution.
So, British Constitution is, in fact, Statutes part written and uncodified.
Middle Eastern States and Kingdom of Bhutan are normally without written constitutions.
Herman Finer’s assessment of the value of ‘written’ constitution is as follows:
At the most, the written constitution is a standard of reference, and it is valuable only in
proportion to its clarity and the extent to which it has not been altered by interpretation. As no
constitution satisfies these conditions for more than a decade after it has issued from the constituent
assembly; the advantage approaches nil. It is not the writing which safeguards, but obstacles to
amendment.

Rigid Constitution or Flexible Constitution

Lord Bryce suggested an alternative approach that would have 'some more definite and
characteristic test' to mark off types of constitutions. His new classification was ‘rigid’ and flexible. He
wants to differentiate the relation which each constitution bears to the ordinary laws of the state, and to
the ordinary authority which enacts those laws.
 The older type of flexible constitutions has elasticity, because they can be bent and altered in
form while retaining their main features. Constitutions of newer kind cannot, because their lines are hard
and fixed. So, they got the name of Rigid Constitution.
A ‘rigid’ constitution is one that needs special procedure for its amendment: a procedure
different from that needed for the amendment of extra constitutional law. A 'flexible' constitution is one
that requires no special procedure for its amendment.
A rigid constitution is thought of as a Constitution which, because it contains legal obstacles, is
hard to alter and is seldom altered. (See 1974 Myanmar Constitution Article 194, Latin America and U.S
Constitutions)
A flexible constitution is thought of as a constitution which is easy to alter and is often altered.
Bryce pointed and wrote‚ depend not so much on its from as on the social and economic forces
that stand behind and support it; and if the form of the Constitution corresponds to the balance of those
forces, their support maintains it unchanged.

Constitutional amendment

A constitutional amendment is a modification of the constitution of

a polity, organization or other type of entity. Amendments are often interwoven into the relevant
sections of an existing constitution, directly altering the text. Conversely, they can be appended
to the constitution as supplemental additions (codicils), thus changing the frame of government
without altering the existing text of the document.

Most constitutions require that amendments cannot be enacted unless they have passed a
special procedure that is more stringent than that required of ordinary legislation. Examples of
such special procedures include supermajorities in the legislature, or direct approval by the
electorate in a referendum, or even a combination of two or more different special procedures. A
referendum to amend the constitution may also be triggered in some jurisdictions by popular
initiative.

A constitutional amendment alters the content of a constitutional text in a formal way.

Constitutions need to be amended over time to adjust provisions that are inadequate, to respond
to new needs, including supplementing rights. Otherwise, the text of a constitution cannot reflect
social realities and political needs over time. Yet the constitution also needs to be protected from
short-sighted or partisan amendments.
 The United States and India, two of the world's largest and oldest democracies, are both
governed on the basis of written constitutions. One of the inspirations for the Constitution of
India, drafted between 1947 and 1950, was the U.S. Constitution.

The U.S. and Indian constitutions diverge in their "stability" or "flexibility." The U.S.
Constitution is very difficult to change and, thanks to a religious American sensibility that treats
it as a sacral document, it has simply not evolved, impervious to the changing needs of a
growing and progressing nation and world. The Constitution of India suffers from the converse
flaw; in less than 75 years, it has been amended, at last count, 103 times. This kind of recipe for
political instability is precisely the worry cited by those who resist attempts to make it easier to
amend the U.S. Constitution.
Every constitution offers a particular set of solutions to a social, economic, and cultural
context. Constitutions should be changed as often as their subjects want to change them, to bring
about the results they want for their political community. Thomas Jefferson suggested that every
generation of Americans should draft its own version to meet the particularities of its time.
Constitution, a toolbox of governance, there to be used and modified to — as the U.S. framers of
the Constitution put it — "make a more perfect union."

Update condition on the Constitution amendment Bill

In order to amend the Constitution in second time, the joint Committee of the 2008 Constitution
amendment Bill, Republic of the Union of Myanmar including 45 members was formed with
Notification No. (15/2019) dated on 19th February 2019 in accord with Section 7 (b) of Pyidaungsu
Hluttaw Law and Pyidaungsu Hluttaw Rules 105 (a). Including Section 436, the Pyidaungsu Hluttaw
representatives have totally debated (135) controversial Sections and Sub-sections in Constitution
amendment Bill from 25th February to 6 th March, 2020 at 15th regular session of Pyidaungsu Hluttaw.

Each Hluttaw representative has to cast 4 secret votes for (55) Sections and Sub-sections

inclusive in Section 436, Sub-section (a) of Constitution amendment Bill, and 5 secret votes for (80)

Sections and Sub-sections inclusive in Section 436, Sub-section (b) of Constitution amendment Bill

started on 10th March 2020 at 15 th regular session of Pyidaungsu Hluttaw individually.