Monday, September 14, 2009

Opposition-backed Constitutional Amendments will be Difficult

The Irrawaddy News

"If a girl is short, she just needs to wear high heels." Those are the well-known words of Kyi Maung, the late leader of the National League for Democracy (NLD) in a press conference just after the elections in 1990 responding the needs of constitution for transfer of power proclaimed by the military junta.

The NLD prepared a temporary constitution to be used during the transitory period to take over power from the ruling military government, but the military government then led by Snr-Gen Saw Maung did not accept the temporary constitution.

In the absence of pro-democracy leader Aung San Suu Kyi, Kyi Maung, a de facto NLD leader, said that the constitution could be amended in response to the military leaders' claim for the necessity of a new constitution before the transfer of power.

Any efforts to amending the constitution would be a challenge since ethnic nationalities wanted to change the form of the Union to that of a federation.

The late dictator Ne Win made a coup d'état in March 1962 while contending that he was saving the Union from disintegrating, when ethnic nationalities, various political parties and U Nu, then the prime minister, agreed to amend the 1947 Constitution.

In the 1947 constitution, any provision could be amended, whether by way of variation, addition or repeal. After an amendment bill had been passed by each of the chambers of Parliament, the bill had to be considered by both chambers in joint sessions. And then the bill could be passed by both chambers in joint sittings with votes in favor of not less than two-thirds required by members of both chambers.

Therefore, the constitutional problems of the 1947 constitution could be solved within the framework of negotiations among stakeholders.

In the 1974 constitution, some provisions could be amended with the prior approval of 75 percent of all the members of the Pyithu Hluttaw (People’s Parliament) in a nation-wide referendum with a majority vote of more than half of eligible voters. The rest of the provisions could be amended only with a majority vote of 75 percent of all the members of the Pyithu Hluttaw. No major amendment had been made to the 1974 constitution.

Before Kyi Maung made his quip, Thomas Jefferson, one of the founding fathers of the United States, said in a letter to Samuel Kercheval, written in July, 1816, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind."

He continued, "We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors," clearly reflecting the need to interpret a constitution in light of changing circumstances.

Constitutions can generally be classified as “rigid” or “flexible.” A rigid constitution provides difficult procedures to modify at least some part of the constitution. A flexible constitution allows simple procedures to amend its provisions.

The US constitution is rigid. It requires a supermajority in the amendment process. The most common method of amendment is for a bill to pass both houses of the legislature by a two-thirds majority in each body followed by ratification by three-fourth of the states.

This is the method used for all current amendments. Nevertheless, 27 amendments have been made to the U.S constitution over a 200-year period. An interesting point is that the president has no role in the formal amendment process.

In Switzerland, it requires a majority vote in a national referendum to approve an amendment of the federal constitution proposed by the legislature or by a petition of 100,000 citizens. Then it requires ratification by a majority of voters in each of a majority of the cantons. The Swiss constitution has been amended significantly over the years.

The United Kingdom’s constitution is flexible. Its constitutional institutions and rules can be modified by an act of Parliament.

The great majority of countries have rigid constitutions. Nevertheless, a rigid constitution does not by itself guarantee the stability and continuity of a country’s constitutional law.

The constitution of South Africa is also flexible and can be amended by an act of Parliament by introducing a bill amending the constitution in the National Assembly. Most amendments must be passed by an absolute two-thirds supermajority in the National Assembly. However, amendments of some important provisions must be passed by the National Council of Province with a supermajority of at least six of the nine provinces.

Although the amending process in the United States is difficult, it is easier than the process in other countries with rigid constitutions. Provisions of a rigid constitution are over time subject to interpretation by the courts or by the legislature or the executive.

Pro-election groups in Burma are advocating a process of embracing the constitutional system and proposing gradual change by amendments to unfavorable provisions in the constitution.

“The military presumably wants to use the elections to ensure its continued dominance, but this is the most wide-ranging shake-up in a generation,” said Jim Della-Giacoma, Southeast Asia project director of the International Crisis. “The government, opposition, neighboring countries and the wider international community must all prepare for the possibility of change they may not be able to control.”

The 2008 constitution requires careful study of the process of amendment to assess whether it is rigid or flexible, and whether there are any loopholes in the constitution that could result in positive or negative consequences.

According to constitution, it requires 20 percent of the members of the Pyidaungsu Hluttaw, (Union Parliament or the two houses combined) to submit a bill of amendment with approval requiring a vote of more than 75 percent in favor.

For important provisions such as basic principles, state structure, qualifications for the presidential and vice presidential candidates and the National Defense and Security Council and a state of emergency, it further requires a nationwide referendum with more than half of eligible voters in favor.

It is clear that the 2008 constitution is rigid requiring difficult procedures to amend its provisions.

In the present constitution of Indonesia, the country which the Burmese military once looked to as a model for the dominance of the military, it requires only a simple majority for any proposed amendment in the People's Consultative Assembly with two-thirds of its members in support.

Suharto, who officially became president in 1968, did not allow any changes to the constitution. Under the rule of Suharto, it required a nationwide referendum with a 90 per cent turnout and approval of 90 percent of the voters to change the constitution.

With the fall of Suharto and the New Order regime in 1998, the amendment process was simplified in order to make it more democratic. The People's Consultative Assembly made constitutional amendments a flexible procedure and as a result, only 11 percent of the original articles remain unchanged from the earlier constitution.

In the 2008 Burmese constitution, the military is given 25 percent of the seats in every state legislature and both national assemblies. The constitution requires more than 75 percent of all the representatives of Union Parliament to amend the constitution important provisions.

To amend the constitution would require the support of all civilian representatives plus the support of at least one military representative in the Pyidaungsu Hluttaw.

Because of the rigidity of the constitution, there appears to be little chance for opposition members of parliament to look to the amendment process as a way to influence the future course of government. As a result, a theory of gradual change through the constitution also appears unrealistic.

Kay Latt can be reached at kaylatt((@)

Burma Newscasts - Opposition-backed Constitutional Amendments will be Difficult
Monday, September 14, 2009

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