Posted in Legislative Research on Jul 29, 2020
Myanmar has been ruled under written constitutions since independence, except for two intervals which together lasted for nearly 35 years. The written constitutions were The Constitution of The Union of Burma (1947), The Constitution of The Socialist Republic of The Union of Burma (1974) and The Constitution of the Republic of the Union of Myanmar (2008).
The 1947 Constitution was written by a committee of 111 members in only three months, and agreed by the Constituent Assembly on 24th September 1947. The 1974 Constitution was drafted by a Constitutional Commission of 97 members, over a period of nearly three years, to be finally approved on 3rd January 1974 by a national referendum. The current 2008 Constitution is the result of a National Convention, which took 15 years to draw up before its adoption in a nation-wide referendum on 19th May 2008. It was in force in 2011 when the Pyithu Hluttaw was first called.
Constitutions tend to be the product of their era, and determine the subsequent political, economic and social systems established by a country. All Myanmar’s Constitutions include peculiarities reflecting their respective eras, but similarities can also be found.
In this article, methods used to amend the constitutions will be explored with particular reference to the 2008 Constitution.
The Constitution of The Union of Burma (1947)
Under the 1947 Constitution, parliament is composed of two chambers – Nationalities and Deputies. The Nationalities Chamber included 125 MPs and the Deputies Chamber included nearly twice that number.
To amend the constitution, a “Bill to amend the Constitution” was to be submitted to one of the chambers. If passed by that chamber, it was then to be considered by both chambers in joint session. Not less than two thirds of MPs can approve the bill. As for the Third Schedule (State Legislative List), the Fourth Schedule (State Revenue List) and the required qualifications of the State MPs, a majority of MPs from the relevant or all States had to vote in its favour. Moreover, chambers in joint session can only pass amendments reducing the special rights of Karen or Chin people if supported by their MPs. If approval was supported by parliament, amendments must be submitted to the President and signed immediately.
The 1947 Constitution was amended seven times – once in 1951, twice in 1959 and four times in 1961.
The Constitution of The Socialist Republic of The Union of Burma (1974)
Under this constitution, the Pyithu Hluttaw was comprised of one representative from each township. Motions for amending the Constitution were to be submitted by the Pyithu Hluttaw members, and if submitted by the People’s Council which is the “Local Organs of State Power”, the amendment will go from the lower to the higher levels of People’s Council and finally to the Pyithu Hluttaw. Specific articles in Chapter I (The State), Chapter II (Basic Principles), Chapter III (State Structure), Chapter IV (Pyithu Hluttaw) and Chapter XV could be amended with prior approval of 75 percent of Pyithu Hluttaw members in the nation-wide referendum with a majority of more than half of those who have the right to vote. For other kinds of amendments, a referendum was not required.
The 1974 constitution was successfully amended once in 1981, and once in 1985.
The Constitution of the Republic of the Union of Myanmar (2008)
Under the current constitution, twenty percent of Pyidaungsu Hluttaw MPs can submit a bill to amend the Constitution to the Pyidaungsu Hluttaw. Specific articles in Chapter I (Basic Principles of the Union), Chapter II (State Structure), Chapter III (Head of State), Chapter IV (Legislature), Chapter V (Executive), Chapter VI (Judiciary), Chapter XI (Provisions on State of Emergency) and Chapter XII (Amendment of the Constitution) can be amended with the prior approval of more than seventy-five percent of Pyidaungsu Hluttaw members in the nation-wide referendum only with the votes of more than half of those who are eligible to vote. For other amendments, a referendum is not required.
The 2008 constitution was amended once in 2015, and once in 2020. On both occasions the final amendments arguably represented minor changes with little overall impact on the nature of Myanmar’s governance.
Analysing the 2008 Constitution amendments
The procedure for amending the 2008 Constitution is identical to that of the 1974 Constitution. The provisions described in Article 436 (a) and (b) stipulate which sections of the charter can be amended with, or without, a national referendum (following approval of more than 75 % of Pyidaungsu Hluttaw MPs).
On both occasions that the 2008 Constitution has been amended, there have been amendments in both categories. In 2015, Article 59(d), which describes ‘qualifications of President and Vice-President’ fell under 436(a) – a referendum is required to approve the amendment; while amendment to Schedule Two (Region or State Legislative List) and Schedule Five (Taxes Collected by Region or States) fell under 436(b): no referendum necessary.
In 2020, changes to Article 32 amending the terms of disabled and elderly people by changing “ma-tan-ma-swam” and “o-min-ma-swam” to “ma-tan-swam” and “tat-gyi-ywe-o” fell into the first category, requiring a referendum; whereas the same change in terminology of the disabled in Article 344 and the change which relates with the appointment of State or Region ministers in Article 262(a)(i) do not require a national poll.
In both 2015 and 2020 those amendments falling under Article 436(b) automatically become the part of Constitution, while those under 436(a) requires a referendum to be held under “The Referendum for the Approval of the Bill Amending the Constitution of the Republic of the Union of Myanmar (2008) Law”. A referendum on these changes is yet to be held.
Does the inflexibility of the 2008 Constitution make it unresponsive to social change?
As the Constitution is considered the ‘mother law’, some rigidity is required to prevent frequent changes. On the other hand, all countries must be able to adapt their systems of governance. This is perhaps truer during a 21st century era of rapid change. If the Constitution is too rigid to be amended to meet social change, it may find itself in conflict with wider society.
There are two main barriers in the 2008 Constitution preventing this adaptability. The first is the problem of achieving 75% support in the Pyidaungsu Hluttaw when a quarter of Hluttaw members are not elected, but appointed by the Commander-in-chief. This is a significant barrier to changing the constitution, and is an especial hinderance to Myanmar’s pursuit of democratic norms by preventing a fully elected national assembly.
The second barrier is specific to Article 436(a), with the requirement that a majority of eligible voters must support an amendment through a referendum.
The fact that the 2008 Constitution is not adaptable to changing social attitudes is evident in the recent attempt to change the constitution. When the term “ma-tan-swam” is amended in two places, only one of those changes became part of the constitution, due to the necessity of referendum. There are a number of reasons why holding a referendum is difficult, including the high cost of holding national polls. However the main factor can be its distinct type which requires the majority of eligible voters, not that of those who will cast vote.
Though the amendment of “ma-tan-swam” is just a term, it represents a positive shift to more respectful language to describe people living with disability. In the Law Providing Assistance and Care for Disabled Personnel of Defence Services and the Families of Deceased or Fallen Personnel Defence Services (2012), “ma-tan-ma-swam” was used, but in The Right of Persons with Disabilities Law (2015), “ma-tan-swam” is used. In the Elderly People Law (2016), the term “o-min-ma-swam” is not found. Some harmonisation of existing laws should at some point follow this constitutional change.
There are many remaining requirements to be embedded in the governance of the country to respect and protect human rights – not least the need to respect gender equality and women’s rights, to ensure no one is discriminated against because of their ethnicity, and the need to protect workers’ rights. If changes cannot be made to protect everyone’s fundamental human rights, due to the lack of political will, and the time and cost of changing the constitution, the current Constitution is unlikely to ever be able to fulfil its functions.
By Hla Myo Kyaw and Moe Aung
(This article is updated on 25 August 2020.)