Irresistible Forces and Immovable Objects: Constitutional Change in Myanmar
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[This chapter appeared as ch.4 of my edited book, A Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Oxford, Hart Publishing, 2017). It examines the critical issue of the process for constitutional amendment. A related text is my note on the probematical s.59(f), which I will also post, from the same book.]
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The Amendment
Process under the 2008 Constitution
The fact that the process of
constitutional amendment has become a critical issue in Myanmar should not be a
matter of surprise. There many issues to be decided which involve the actual application
of the amendment process. In addition the issue of whether and how to change
the amendment process itself, given the 2008 Constitution’s[1]
comparative rigidity,[2] is notably
a matter for speculation and debate. More than one third of the 323,000 individual
suggestions for revision received in the review process in 2013 related to the
problem of constitutional amendment.[3] It
is, for example, heavily implicit in discussions about creating a federal
system for Myanmar, given that the states’ powers to resist constitutional
changes depend on how the amendment provision is drafted. As is recorded in the
note at pp.263ff there is also the issue of section 59(f), which in 2016
prevented Daw Aung San Suu Kyi from becoming President of Myanmar due to her
family connection; this will no doubt be a target for constitutional amendment
in future. In early 2016 there was debate around the issue of whether this
section could somehow be ‘avoided’ or ‘suspended’, given the virtual
impossibility of securing its amendment.
Let
us first take a careful look at the amendment process currently provided under
sections 433-6 of the Constitution. These provisions are likely to be revisited
many times in the next few years. They state:
433.
Any provision of this Constitution may be amended in the manner herein after provided
:
(a)
the proposal to amend the Constitution shall be submitted in the form of a
Bill;
(b)
the Bill to amend the Constitution shall not contain other proposals.
434.
The Bill to amend the Constitution shall be submitted to the Pyidaungsu Hluttaw.
435.
If twenty percent of the total number of the Pyidaungsu Hluttaw representatives
submit the Bill
to amend the Constitution, it shall be considered by the Pyidaungsu Hluttaw.
436. (a) If it
is necessary to amend the provisions of Sections 1 to 48 in Chapter I, Sections
49 to 56 in Chapter II, Sections 59 and 60 in Chapter III, Sections 74, 109,
141 and 161 in Chapter IV, Sections 200, 201, 248 and 276 in Chapter V, Sections
293, 294, 305, 314 and 320 in Chapter VI, Sections 410 to 432 in Chapter XI and
Sections 436 in Chapter XII of this Constitution, it shall be amended with the
prior approval of more than seventy-five percent of all the representatives of
the Pyidaungsu Hluttaw, after which in a nation-wide referendum only with the
votes of more than half of those who are eligible to vote.
(b) Provisions
other than those mentioned in Sub-Section (a) shall be amended only by a vote
of more than seventy-five percent of all the representatives of the Pyidaungsu
Hluttaw.
In
order to understand the complexity of having two layers of entrenchment as a
result of Section 436(a), we need to note which constitutional provisions are
covered and which are not covered by this section. The point is that those not
covered by this subsection are rather more easily amended, i.e. by an Act of
the Pyidaungsu Hluttaw (both houses of the legislature sitting together),
with the requirement of a special majority of more than 75% of the
members. The significance of the formulation ‘more than 75%’ is that 25% of
seats in each house are occupied my military appointees; thus any
constitutional amendment must be supported by at least one military member even
if 100% of the other members vote in favour of the amendment. This in effect gives
the military a veto over constitutional amendments. This special majority in
itself is already an onerous requirement compared to special majorities in
other constitutions worldwide, but the additional referendum requirement for
major provisions is without doubt a real chill factor when it comes to
constitutional amendment. It requires organising the equivalent of a general
election, even if the amendment passes the initial threshold in the
legislature.
It
is natural enough that, in one of the world’s longest constitutions extending
to 457 sections, provisions concerning the basic structure of the Constitution
are protected from amendment at a higher level than more incidental provisions
dealing with matters of detail. In effect the Constitution, by determining two
levels of entrenchment, has actually defined its own basic structure. This
could be of great importance if the Indian Supreme Court’s doctrine of inherent
limitations on the power of amendment, established in Kesavananda in
1973,[4] comes
to be argued in the courts in Myanmar. This doctrine, which has been argued but
not always adopted in other constitutional systems too,[5] holds
that the amendment provision in the Constitution cannot apply to literally any amendment
that complies procedurally with the Constitution; it maintains that no
amendment can be valid which destroys the basic structure of the Constitution.
Whether a given proposed amendment has this effect is for the court to decide.
How this argument might play in Myanmar could become a very important issue in
future, especially for minority populations, as the process for renovating the
2008 Constitution moves forward under a new government. The answer is likely to
be that, given the express double-level entrenchment, the doctrine of inherent
limitations has no application. If the Constitutional Tribunal gets to decide
this issue it will be deciding nothing less than the degree of entrenchment of
the Constitution itself. The question would be, in effect, whether the 2008
Constitution represents a founding moment in Myanmar’s constitutional history,
or is just a stage of development in constitutionalism. This is a question that
lurks beneath all of the issues regarding the current amendment process,
including the issue of how to reformulate the amendment provisions themselves.
If the 2008 Constitution is seen in the light of transition and the argument
advanced here, it is suggested that judicial review of constitutional
amendments should not present an issue in Myanmar. The real issue is how rigid
or flexible the Constitution should be made when sections 433-6 are revisited.
So
which provisions are in fact protected at this higher level by the referendum
requirement?
All
of the general principles of the Constitution in Chapter 1 are protected, as is
the entire chapter 11 on emergency powers. This is in contrast with the
fundamental rights provisions (chapter 8), which are not protected. The point
will inevitably be raised that the justification for entrenching all of the
emergency powers but none of the fundamental rights lacks any obvious
justification. With regard to the operation of the legislatures and structure
of government at all levels, the courts and the judiciary, only the basic
provisions as to the composition of these are protected. For example the five-year
term for the President and Vice-Presidents, the two-term limit on their tenure,
and their separation from the legislature, are protected; but the extensive
powers of the President are regarded as detail in this model. Details of
appointments, tenure, impeachment, qualifications, procedure and executive
powers are not in general protected; as are those concerning elections, political
parties, the civil service, and the defence services. Therefore the rigidity of
the Constitution, although real and significant, does not extend in fullest
measure to the very large number of matters of detail that the Constitution
deals with. This is important because, if one assumes two levels of
entrenchment, the argument that the Constitution is very long and detailed (it
has more articles than even the Indian Constitution, which has 395) is not in
itself a justification for converting the Constitution into a completely flexible
one. Finally, sections 433-6 themselves – the amendment provisions – are of
course protected at the higher level.
The
following points need to be noted.
An
amending bill must be explicitly an amending bill. Amending provisions cannot
be wrapped up in a bill dealing with other matters. If it were otherwise it
might be possible to amend the Constitution accidentally, if for example the
bill happened to be supported by the requisite majority and did not fall within
section 436(a). An amending bill must also be presented by 20% of the total
membership of the two houses. Major amendments falling under section 436(a)
must be approved by more than 75% of all the representatives in both
houses, and must also be approved by a simple majority in a referendum. Note
that this latter majority is a majority of all eligible voters, not a
majority of those voting. Accordingly the Constitution can truly be said
to be very rigid.
However, rigidity and flexibility
cannot be judged solely in terms of the amendment provision. In the Myanmar
context the really significant point as we have seen is that 25% of the members
of each house are appointed by the military, giving the military effective
control over constitutional changes. This was clearly the intended outcome,
given the ‘discipline-flourishing democracy’ mantra of the 2008 Constitution.[6] This
is tantamount to saying that the head of the armed forces has a veto over major
constitutional changes, since he is in a position to control the voting of
military members. The Constitution states laconically at section 342: ‘The President shall appoint the Commander-in-Chief of the Defence
Services with the proposal and approval of the National Defence and Security
Council’. This is an issue raised in the very large number of submissions that
the Parliamentary Joint Committee for Review of the 2008 Constitution (PJCRC) received,
and it will no doubt be revisited, presenting an issue for potentially acute
struggle between the civil and military powers.[7]
The Constitutional
Review Process: Amending the Amendment Provision
The constitutional review process
itself is not of course mandated entirely by the Constitution, which lays down
the minimum requirements, but not necessarily the desirable
requirements, for constitutional amendment. However, a structure for looking in
detail at a range of possible amendments was clearly required, and nothing in
the Constitution prohibits processes such as the one conducted in 2013-14. With
the benefit of the experience of that process, abortive as it proved to be in
terms of actual outcomes, in reviewing sections 433-6 Parliament might well
consider whether it is a good idea to set out in more detail how a review
process should be carried out. Indeed even the previous President Thein
Sein was reported as saying that ‘a healthy constitution must be amended from
time to time to address the national, economic and social needs of our society’.[8] In
this context, and anticipating the discussion of federalism that seems certain
to occur, one wonders if this issue might need such protracted negotiation that
it cannot be dealt with via the current amendment process. This theme is
explored by David Williams in chapter 3.
The
2013-14 process proceeded as follows.[9]
The
PJCRC comprising 109 persons, was appointed in July 2013 under the chairmanship
of the Deputy Speaker of Parliament, to:
Bring
about a constitution that can build up longevity, stability, and development … …
everlasting peace by building up national solidarity among ethnic nationalities
… [and] continue [the] democratic reform process of the state and its citizens
without effecting [affecting?] its acceleration …[10]
The
PJCRC invited submissions, receiving reportedly more than 28,000 ‘advice
letters’ by the postponed closing date of 31 December 2013.[11] The
submissions came from political parties, legal experts, NGOs, government
departments, the military, and individuals. The main opposition party, the NLD,
proposed more than 100 amendments. This response in itself is a tribute to the
engagement of the people of Myanmar, and its various public and private
institutions, in constitutional issues. Interestingly enough, more than one
third of the submissions related to the amendment process. Other notable topics
were the qualification provisions regarding the presidency,[12] and
the continued role of the military in the Constitution. Obviously, given the
need for the PJCRC to report back to Parliament by the end of January 2014, a
very narrow opportunity was afforded for the PJCRC to look into the
submissions. It formed five working groups who simply reduced the submissions
to statistics according to the chapters of the Constitution being addressed in
the submissions. It was clearly not possible to do anything beyond a purely
statistical analysis. About two thirds of these submissions suggested changes
to the all-important chapter 1 (basic principles).
However,
the PJCRC offered a few comments. They stressed the need to ‘avoid the extremes
of over-centralisation and over-decentralisation’; the need for negotiation of
the right to self-administration ‘depending on ethnic nationalities’ political,
economic, education and administrative situation’; and to prioritise those
provisions requiring a 75% majority.[13]
Essentially the PJCRC simply acted as a post office for the submissions. The Pyidaungsu
Hluttaw then appointed[14] a ‘Committee
for the Implementation of the 2008 Constitution Amendment’ (CICA), comprising
31 members, including the Vice-Chairs of both Houses and seven military
personnel; but a further nine MPs from minority areas were empowered to attend
and make suggestions at CICA meetings. Its goals were expressed similarly to
those of the PJCRC; but in addition they were mandated to draw up ‘a legal
draft for the Constitution after discussing and realizing some facts [sc. provisions?]
to be amended and a number of facts which it is unnecessary [sc. to amend]’. In
doing this the CICA was empowered to ask advice and suggestions from the
government and regional and state heads, the judiciary, representatives of the
autonomous regions and states, political parties, and legal experts. It was
further mandated to ‘ensure to completely implement the [relevant] orders and directions
in time’ and report back to Parliament.
One
of the most controversial of the provisions considered in the review process is
section 59, the provision preventing Aung San Suu Kyi from becoming President
following the elections of November 2015. It states:
59.
Qualifications of the President and Vice-Presidents are as follows:
(a)
shall be loyal to the Union and its citizens;
(b)
shall be a citizen of Myanmar who was born of both parents who were born
in
the territory under the jurisdiction of the Union and being Myanmar Nationals;
(c)
shall be an elected person who has attained at least the age of 45;
(d) shall be
well acquainted with the affairs of the Union such as political, administrative,
economic and military;
(e) shall be a
person who has resided continuously in the Union for at least 20 years up to
the time of his election as President;
Proviso: An
official period of stay in a foreign country with the permission of the Union
shall be counted as a residing period in the Union;
(f)
shall he himself, one of the parents, the spouse, one of the legitimate
children
or their spouses
not owe allegiance to a foreign power, not be subject of a foreign power or
citizen of a foreign country. They shall not be persons entitled to enjoy the
rights and privileges of a subject of a foreign government or citizen of a
foreign country;
(g) shall
possess prescribed qualifications of the President, in addition to
qualifications prescribed to stand for election to the Hluttaw.
Several of these provisions stand as
obstacles preventing Aung San Suu Kyi from assuming
the presidency. This controversial issue is a good example of the fact that
constitutional amendment processes can never be surgically separated from personal
politics; this issue has been at the forefront of discussion since the start of
the process.
It is quite usual for a Constitution
to demand a clear and abiding connection between the chief executive and the
nation. However, section 59 goes very much further with this principle. If it
is amended it will have to be decided where the line is to be drawn. Section
59(d) creates an area of uncertainty. Would the Constitutional Tribunal
disqualify an election to the presidency if they thought that the person did
not in fact have acquaintance with the affairs of the Union, for example
military affairs? My own view would be that paragraphs (b), (d), (e) and (f)
should be removed. At least (f) should be confined to the person in question
rather than extended to members of his/her family. Given the immediate
political significance of this provision the debate will no doubt be highly politicised.
The PJCRC apparently received a large number of ‘signatures’ expressing a desire
to keep section 59 as it is; and, inconsistently, went out of its way to remark
that 106,102 people ‘advised with signature’ that this section remain
unrevised, while only 592 people made ‘separate advice letters’ in favour of
revision. This remark clearly begs a few questions about the legitimacy of the
process undertaken in 2013-14.
Critique
of the Amendment Process
It is hard to overstate the
importance of the amendment provision in any Constitution. One could plausibly
argue that ultimately the amendment provision is the most important provision,
because it determines the extent of entrenchment of the Constitution itself. In
this sense it is a rule enjoying a higher status than all the other
constitutional rules.
However,
we do not have any established theory or textbook that lays down what kind of processes
for constitutional change are better than others, or what pitfalls are to be
avoided, or even how each process might bounded by the particular politics or
jurisprudence or culture of the society in question. Current wisdom appears to
say that in general one needs a great deal of public participation, and a
referendum to legitimise the draft. This is often as much a matter of public
education as of public participation. In Myanmar as we have seen a referendum
is required for any change to the basic constitutional structure. A further
problem is that processes of constitutional change are obviously highly
political, it being (I think, reasonably) assumed that those who have most
control over the constitution-making process are most likely to have their
interests protected and their agendas fulfilled in the end product – the resulting
constitution itself. It is of course also true that the politics of these processes
of constitutional change are deeply intertwined with the ongoing general
political narrative, as we have just seen. It seems unavoidable that the constitution
will in some sense reflect the politics of the moment even as an attempt is being made to provide rules containing
and directing the political processes of the future.
So
addressing the amendment provision, we find a dilemma familiar in transitional
contexts. Does a rigid constitution ensure there will be no backsliding from
agreed fundamental principles in the early years of transition? Or does it, on
the contrary, simply prevent the kind of rapid adjustment that is sometimes
necessary in a fast-moving situation where power structures or normative
considerations, or simply just political contexts, may change? In transition,
flexibility may facilitate a regression into authoritarian government; on the
other hand rigidity may facilitate its continuance. While the rigidity of the
Constitution might seem to be a large obstacle in the way of change, it needs
noting that it could also ensure that any changes that are eventually made carry
broad legitimacy.
Of
course Myanmar is by no means the first country to face this dilemma. The
preference has usually been for flexibility in the amendment process as a means
of accomplishing transition. Arguably the constitution is always in some sense
a work in progress, and has to adjust to changing times and concerns.
Nonetheless in transitional situations it is the sheer rapidity of change and
adjustment that justifies this approach. If one accepts this reasoning the
issues do not, however, disappear. One still has to determine how flexible
the Constitution should be; and if the rationale is linked to transition, then
the question arises as to when ‘transition’ comes to an end and its opposite becomes
manifest. (What is that - ‘stability’? Is this even, one wonders, a plausible
distinction to draw?) The process of transition may involve further changes at
some point to the process of amendment. But should one place a time limit on
flexibility? Does one specify in advance some kind of timed reversion to a more
rigid rule? Does this all apply to the whole of the Constitution or only
certain parts of it?
These
issues are not made any simpler by the fact that, when it comes to rigidity
versus flexibility, constitution-makers are faced with a very broad range of
options. It is not unknown for constitutional provisions to be made completely
unamendable in any circumstances. Beyond that there are degrees of flexibility
ranging through special parliamentary majorities; special parliamentary
procedures; consultation exercises; referenda; regional consensus; and finally total
flexibility, in which any legislation inconsistent with the constitution has
the effect of amending it - in other words absolute parliamentary sovereignty.
Beyond even this, flexibility and rigidity may take on a different aspect when
considered against the actual political background, as we have seen in the case
of Myanmar with the issue of military representation. For example, if the constitution
requires a special parliamentary majority of two thirds, but the coalition in
government commands more than two thirds of the votes, as was the case in
Malaysia 1957-2008, then the apparent rigidity of the Constitution may turn out
to be closer to flexibility in practice. By way of contrast the Japanese
constitution also has a two-thirds’ majority requirement, but has remained
unamended since 1947 despite the historical dominance of one party. In practice
it has proved rigid despite having a more or less similar rule to Malaysia.
In
Myanmar’s case the amendment process is inextricably linked with the main issue
in the reform process, the role of the military. This role, extensive enough in
the 2008 Constitution to excite much adverse comment on that Constitution as a
whole,[15] is
evident in many respects, but no more obviously than in the military
representation in both Houses to the extent of 25%.
The
reason for this rigidity is clearly the desire of the military to retain
control over the reform process. However, as is not unknown in such processes,
the role of the military is itself transforming rapidly. For example, the
constitutional review process itself was proposed by two generals; and the
military accepted the November 2015 landslide result with apparent equanimity. The
implications for the amendment process are very clear. If the military is to
withdraw to any extent from its present position under the Constitution, then significant
changes are needed, and the amendment provision in particular will have to be
amended to take account of the new situation, which means doing away with the
de facto military veto over amendments.
This
discussion then narrows to an overwhelming question: what should replace
the present provision under Sections 433-6 on constitutional amendments, if
anything?
In
Myanmar’s context it looks as though a critical consideration is the role of
the ethnic and religious minorities. Creating unity in a deeply divided country
entails creating confidence in the constitutional structure which is emerging.
That confidence can only be created if the minorities have reason to believe
that the constitution will not be amended to their detriment or without
recourse to consultation with them. This is crucial if there is to be a ‘Second
Panglong Agreement’ as David Williams puts it in chapter 3:
In
constitution-making, there are almost always second chances: if the first constitution was badly framed,
it will usually lead to unrest and unhappiness, sometimes to civil war, and
eventually the process will usually be re-opened. In Burma, the gap between the first and
second Panglong agreements has been uncommonly long, and in the interim many
ethnic minorities despaired of the future.
It now appears, though, that the government and the minorities will
reach some kind of agreement in the months or the years to come.
There is another problem in this
regard. David Williams also argues that any negotiated solution to the demands
of the ethnic minorities must be ‘self-executing’:
A
second Panglong Agreement must be self-executing, because it would never be
adopted through the normal constitutional amendment process, which requires the
support of both the military and much of the majority ethnic population … in
recent years, self-executing peace deals that make constitutional change all by
themselves have become an increasingly common international practice.
However,
it looks very much as though any such negotiation will indeed have to be processed
via the amendment provision. How else can it be dealt with other than by
adoption of a completely new constitution, which is not, it seems, an option that
is on the table? Negotiators can hardly be expected to give guarantees as to
the parliamentary outcome of this process with regard to
federalism/autonomy/devolution of powers.
I
suggest therefore that in the haste to move away from the rigidity of the
present Constitution, flexibility should not be embraced too tightly; retaining
some rigidity could actually provide a measure of stability that Myanmar seeks
to attain. Assuming that the present process results in a constitution that is
believed in and assented to, some rigidity in certain respects, especially
those affecting minorities, should in my view be maintained. In particular
the issue of fundamental rights (see chapter 11 by Catherine Renshaw) needs
attention. Here one assumes that the ‘discipline-flourishing democracy’ the
2008 Constitution sought to establish is moving towards a more open democracy.
In this respect it was probably considered that the fundamental rights needed
some careful calibration, making them for this reason unsuitable, in the eyes
of the constitution-makers, for higher-level entrenchment. After more than five
years of this Constitution and many changes in respect of fundamental rights,
including the statutory establishment of the National Human Rights Commission,[16] it
might well be considered appropriate to entrench the human rights chapter by
subjecting it to the stricter amendment process provided by section 436(a).
After all, its provisions contain a good deal of flexibility in terms of their
own wording.
These
considerations bring to the fore the issue of whether to retain the special
majority of 75% and the referendum requirement. The 75% rule has been criticised
for giving to the military what is in effect a veto over constitutional
changes. For this reason the question of constitutional amendments is inextricably
tied up with the large question of military representation in the various legislatures
and their hold over the government via the constitutional right to hold some of
the portfolios, as well as enjoying, potentially, very broad emergency powers.
A significant step forward would be to delink these two issues and reduce the
constitutional role of the military. If Myanmar takes a cue from Indonesia, the
military role would be reduced in successive stages as democratic aspirations
become enacted into law. In Indonesia this was achieved only in four successive
constitutional amendment processes.[17] It
will be a nice question in the review process how far or how quickly this role
is to be reduced; but whatever position is taken on this tricky issue, it seems
clear that a military stranglehold over constitutional changes is not in the
interests of building up trust and a new order of democratic and constitutional
government. In this context perhaps what would serve Myanmar better than the present
rule is one that requires the consent of a proportion of the country’s states and
regions instead of a referendum requirement. It is generally acknowledged that
referenda create problems as a means of resolving such general issues. They
tend to get caught up with other issues such as the popularity of the
government in power, and are in any event hard to frame in a content-neutral
fashion.[18]
Constitutional
powers need to be shared amongst the Union, regions, states and ethnic
self-administered areas. This theme is discussed in depth in chapters 1, 3 and 7 of this book. This
process is already under way, as Marcus Brand shows in chapter 7, and, in
conjunction with an amendment process that guarantees minority participation
and consent, could provide a framework for trust and for emerging
constitutionalism. How Myanmar stays together has been the perennial conundrum
of the country since independence. It is fundamental to constitutional
development and to legitimation. It is important in reform processes to
keep in mind, in the words of the Constitutional Court of South Africa,[19] which
seem highly relevant in Myanmar, that ‘the Constitution … retains from the past
only what is acceptable and represents a radical and decisive break from that
part of the past which is unacceptable’. The opportunity now beckons to do
precisely that.
[1] For the text of the
Constitution, see www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf.
[2] For discussion of the
issue of rigidity/flexibility in the Myanmar context, see below; and A Harding,
‘Law and development in its Burmese moment: Legal reform in an emerging
democracy’, ch 20 of M Crouch and T Lindsey (eds), Law, Society and Transition in Myanmar (Oxford, Hart Publishing,
2014).
[3] ‘What is wrong with
Myanmar’s Constitution?’, The Economist, 5 March 2014, available at: www.economist.com/blogs/economist-explains/2014/03/economist-explains-3.
See, further, A Harding, ‘Constitutional
Change in Myanmar: A Problem of Process v Substance’, CALS Myanmar Law Working
Paper No 2, available at: law.nus.edu.sg/pdfs/cals/working_papers/Myanmar/MWPS002.pdf.
[4] Kesavananda
Bharati v State of Kerala AIR 1973 SC 1461.
[5] The
Bangladesh courts have upheld the doctrine (see Anwar Hossain Chowdhary v.
Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1), while the
Malaysia courts have not (see Phang Chin
Hock v Public Prosecutor [1980] 1 MLJ 70). See, further S Krishnaswamy, Democracy and Constitutionalism in India: A
Study of the Basic Structure Doctrine (New Delhi, Oxford University Press,
2011); SP Sathe, ‘Limitation on Constitutional Amendment: “Basic Structure”
Principle Re-examined’, in Rajeev Dhavan and Alice Jacob (eds), Indian Constitution: Trends and Issues (Bombay,
Tripathi, 1978); Minerva Mills Ltd v
Union of India (1980) 2 SCC 591. For Singapore, see A Harding, ‘Does the
“Basic Structure Doctrine” Apply in Singapore’s Constitution? An Inquiry into
Some Fundamental Constitutional Premises’, ch.2 of J Neo (ed), Constitutional Interpretation in Singapore:
Theory and Practice (Abingdon, Routledge, 2016).
[6] DI Steinberg, ‘Myanmar’s
perpetual dilemma: Ethnicity in a “discipline-flourishing democracy”’,
East-West Centre Working Papers, Politics, Governance and Security Series No 22,
April 2011.
[7] ‘Burma creates a
109-member Committee to review constitution under uncertainty’, Asian
Correspondent, 30 July 2013, available at: asiancorrespondent.com/111311/burma-creates-a-109-member-committee-to-review-constitution-under-uncertainty/; ‘Public suggestions on constitutional amendment with
Myanmar Parliament’, AGORA, 3 February 2014, available at: www.agora-parl.org/news/public-suggestions-constitutional-amendment-myanmar-parliament.
[8] Straits Times, 2 January 2014.
[9] See Report of Constitutional Review Joint
Committee’s Findings and Assessment, January 2014.
[10] ibid.
[11] In fact they also
took account of letters received on 2-3/1/14.
[13] This is puzzling,
since all the Constitution’s provisions require more than a 75% majority, but
perhaps they were referring to provisions falling under section 436(b).
[14] See Pyidaungsu Hluttaw Order No 20/2014,
3/2/14, entitled Organising
Implementation Committee for the Amendment of the Constitution.
[15] Y
Ghai, ‘The 2008 Myanmar Constitution: Analysis and Assessment’, Burma Library, available at: www.burmalibrary.org/docs6/2008_Myanmar_constitution--analysis_and_assessment-Yash_Ghai.pdf.
[17] T Lindsey,
‘Indonesian constitutional reform: Muddling towards democracy’, (2002) 6 Singapore
Journal of International and Comparative Law 244.
[18] S Tierney, Constitutional Referendums: The Theory and
Practice of Republican Deliberation (Oxford, Oxford University Press,
2012).
[19] Shaballala and Others v AG of the Transvaal and Another, 1996 SA
725 (CC).
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