Jesse Hartery considers the possibilities for a change in Myanmar’s constitutional amendment procedure.
Federal constitutions can be seen as pacts or as the expression of a new national project. While each way of conceptualizing a federal state can have an impact on its structure and the way in which judicial review is exercised, in both contexts, federations tend to have complex amendment procedures. As a general rule, constitutional amendments should be harder to achieve in federal states because any change must implicate the central legislature and the federated entities in some way. There is no doubt that Myanmar’s current constitutional amendment procedure is a roadblock to serious constitutional change. This roadblock exists for all the wrong reasons, rather than the legitimate and necessary reasons that are usually found in federal states. As Myanmar considers transitioning to a federal union, its leaders should also consider what should replace the current constitutional amendment procedure.
It is well-known that the current amendment procedure was built to ensure continued military involvement in governing the Southeast Asian state. Chapter 12 of Myanmar’s 2008 Constitution provides two distinct ways of modifying the Constitution. The first mechanism provided in section 436 of the Constitution requires the approval of more than 75% of all the representatives of the Pyidaungsu Hluttaw, followed by a nationwide referendum which requires the approval of more than 50% of the voting public. The provisions of the Constitution falling in this category include:
- Those defining the basic principles of the country, including non-disintegration, the aspirational elements of the Constitution, the rules surrounding executive, legislative and judicial power, the “fourth branch” of government afforded to the Tatmadaw, the rights and obligations of citizens, and the rules surrounding declarations of emergencies;
- The sub-national state structure;
- The qualifications and method of electing the President of the Union;
- The rules governing the formation of the Pyidaungsu Hluttaw, the Pyithu Hluttaw, the Amyotha Hluttaw, the Region and State Hluttaws, the Union Government, the National Defence and Security Council, the Region and State Governments, the courts at all levels, the Constitutional Tribunal; and
- Any changes to the amendment procedure itself.
All the other provisions of the Constitution can be amended with the approval of more than 75% of all the representatives of the Pyidaungsu Hluttaw. Among the most important provisions of the Constitution that can be amended by following this second mechanism, we find the legislative powers afforded to both levels of government. In other words, Schedules One (Union Legislative List) and Two (Region and State Legislative List) can be amended by the central legislature without a referendum.
Both mechanisms require military consent. This is the case because sections 109 and 141 of the Constitution stipulate that 25% of the seats in the Pyidaungsu Hluttaw are afforded to military personnel nominated by Senior General Min Aung Hlaing, the Commander-in-Chief of the Tatmadaw. At a minimum, a constitutional amendment requires at least one military vote, effectively giving the Tatmadaw a veto. Given the demands imposed by the military chain of command, however, it is clear that all military votes on constitutional questions are controlled by the Commander-in-Chief. In other words, rather than having an amendment procedure seeking to protect the interests of the Bamar majority and minority ethnic groups, Myanmar has an amendment procedure that seeks to protect its military leaders and their role at both the national and sub-national level.
Simply put, the current way of doing things is not compatible with a federal state structure. Among the many indicators of federal status, we find the need for a constitutional document which neither order of government can alter unilaterally. The amending procedures found in federal states usually fall into three categories: (1) those that include some form of sub-national legislative consent; (2) those that include some form of sub-national consent through direct involvement in the upper house of the federal legislature; and (3) those that include some form of sub-national consent through the popular vote. An exception to these rules can be found in federal states like Belgium before 2014, where sub-national consent is obtained through the upper house of the federal legislature. That being said, in these rare exceptions where sub-national consent is not directly sought, the high level of consent needed ensures that all the major linguistic or ethnic groups in a multinational federation have provided their assent in some way. Another exception is federal states like Brazil, where amendments which seek to abolish or bring substantial changes to the federal system are forbidden outright. These provisions are called “eternity clauses”.
Countries like Canada, Mexico, Nepal, Nigeria, South Africa and the United States fall in the first category. In Canada, the constitutional amendment procedure allows for unilateral amendments by either level of government on some questions, while unanimous consent is required on other questions. The general amending procedure, however, requires the consent of the federal legislature and at least seven provincial legislatures representing at least 50% of the population. In other words, most constitutional amendments in Canada require the consent of a substantial number of federated entities. Section 135 of Mexico’s Constitution is comparable in that amendments require the consent of three-quarters of the members in each house of the federal legislature and must be ratified by more than 50% of the sub-national legislatures. Nepal, Nigeria, South Africa and the United States follow a similar approach.
Countries like Austria, Belgium and Germany fall in the second category. Section 79 of the German Basic Law states that a two-thirds majority is required in both houses of the federal legislature to secure a constitutional amendment. That being said, its upper house, the Bundesrat, is composed of members chosen by the sub-national governments. This means a substantial level of consent from the sub-national entities is required through the central legislative process before a constitutional amendment can be approved. In addition, Germany has its own eternity clause which stipulates that the federal character of the state can never be abolished. In Belgium, section 195 of the Constitution sets out a three-phase procedure for constitutional amendments. First, the three branches of the federal legislature (the House of Representatives, the Senate and the monarch) must issue a declaration for a constitutional revision. Second, this declaration is published in the Belgian State Gazette and results in an election within 40 days. Finally, the newly elected federal legislature may revise the Constitution, but such revisions can only be obtained with the support of a two-thirds majority in both houses of the federal legislature. The Belgian Senate is composed of members of and appointed by the community and regional parliaments. In other words, much like Germany, Belgium’s expression of sub-national consent is done through representatives of the sub-national entities in the federal upper house. This same principle exists in Austria, though a referendum is also required.
Countries like Australia and Switzerland fall in the third category. In Australia, section 128 of the Constitution provides that most constitutional amendments must be passed by the federal legislature before being submitted to the people. These amendments must secure the support of a majority of the country’s population, and a majority in the majority of States. Similarly, in Switzerland, an amendment requires the assent of a majority in both houses of the federal legislature and the majority of the electorate in at least twelve sub-national entities (referred to as cantons). Of note, in keeping with Switzerland’s tradition of direct democracy, citizens can demand an amendment to their Constitution through a popular initiative. Once 100,000 signatures are obtained in support of the proposed amendment, a referendum will be launched, thus circumventing the need for legislative approval in the federal Parliament. These federations therefore ensure substantial sub-national consent is obtained by going straight to the people. However, an absolute majority of the country’s population is not sufficient to secure an amendment. A majority in the majority of States will also be required to effectuate such changes, thus giving voice to the federal principle.
India stands in its own distinct category. Its constitutional amendment procedure features aspects of both the first and second categories, while also maintaining a doctrine similar to the situation in Brazil and Germany. As per section 368 of the Constitution, all constitutional amendments must be obtained through a two-thirds majority in both houses of the federal legislature. In certain specific cases, namely as it relates to the federalism-related provisions of the Constitution, ratification by at least 50% of the sub-national legislatures is required. Moreover, since the Supreme Court decision in Keshavananda Bharati v. State of Kerala in 1973, the “basic structure” of the Indian Constitution, which includes its federal structure, cannot be amended at all. Of course, section 3 of the Constitution also gives the federal legislature the authority to reorganize the States through an absolute majority in both houses. While this provision is controversial, it is important to recognize that India’s upper house (the Rajya Sabha) is composed of members chosen by the sub-national legislatures, which is quite similar to Austria, Belgium and Germany. In that sense, this exception to the general amendment procedure is subject to some form of sub-national consent through representatives of the sub-national entities in the federal upper house. The federal principle is therefore maintained.
The current peace talks and constitutional negotiations in Myanmar have failed to adequately consider this crucial question. Any constitutional changes that are eventually made as a result of negotiations through the 21st century Panglong Conference could be affected if amendments can later be brought to these same changes without any involvement by the federated entities or ethnic groups. In other words, providing for a constitutional amending procedure built on the federal principle is the best way to maintain the gains that will be made in the coming years. Evidently, the rules outlined above presuppose that a federal system exists, notably through divided sovereignty. If Myanmar adopts a new amending procedure without changing the serious hurdles to legislative and executive sovereignty, this change will have no meaningful weight. If the executive branch of the sub-national entities is given some role to play in constitutional amendment, as is the case in Germany, centrally appointed Chief Ministers pose a problem. If the sub-national legislatures are given a role in constitutional amendment, the fact that these amendments could pass the legislature or that representatives in the national legislature could be appointed by political parties that have not obtained a majority of votes at the sub-national level would be problematic. This is the case because the military is afforded 25% of the seats in the sub-national legislatures and political parties must obtain at least 67% of elected seats to hold a majority. In other words, a party that obtains the majority of sub-national votes, but not a majority of seats, could be prevented from protecting sub-national interests in the context of a constitutional amendment. For example, in the 2015 general election, the Arakan National Party (ANP) won the majority of votes and elected seats in Rakhine State. However, the ANP was only given 46% of the seats in the entire Rakhine State Hluttaw. In other words, the current system creates democratic distortions which could pose a problem if this model is chosen for constitutional amendments.
All these constitutional issues are interrelated and must be addressed if Myanmar is to transition to a federal system. Myanmar’s past certainly provides a great starting point for discussion. While the 1947 Constitution was easier to amend in theory, given that it only required at least a two-thirds majority in both houses of the federal legislature, it made an effort to give voice to the federal principle. Any amendments made to the State Revenue and Legislative Lists required the assent of the “majority of members present and voting representing the State or each of the States concerned”. In other words, if all States were affected by an amendment, a majority of members representing each State would have had to vote in favour for it to pass. Myanmar’s constitutional amendment procedure was thus consistent with the model adopted in Belgium prior to 2014. As I explained in an earlier piece, the National League for Democracy government seems to have accepted that enacting constitutional amendments using the procedure provided in the 2008 Constitution is not sufficient. It has recognized that getting ethnic minorities onside is an essential part of any constitutional change. An expression of this principle deserves to be given formal recognition through the text of the Constitution. The federal principle requires nothing less.
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