Amending Provisions of the 2008 Constitution: (Non)Lessons from the Malaysian and Myanmar Constitutional Past?

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  • By Dr. Myint Zan

After more than two and half years of coming into (or sharing) power the ‘People’s government’ based on its election slogan ‘time for change’ has now taken steps towards amending the 2008 Constitution. A member of the National League for Democracy (NLD) and Pyidaungsu Hluttaw member U Aung Kyi Nyunt has proposed and the Hluttaw has accepted to debate his proposal to form a committee to look into the issue of amending certain provisions of the 2008 Constitution. (GNLM, 30 January 2019, page 2).
As rightly pointed out by U Aung Kyi Nyunt his proposal was not a Bill to amend the Constitution as such. It is, for now, a ‘humble’ proposal that tentative steps be taken to fulfill one of the main (though arguably not the main) promises given by the NLD (to amend the 2008 Constitution) in the campaigning during the 2015 election.

Rigid and Flexible Constitutions
In the academic literature concerning comparative constitutional law and politics the terms flexible and/or rigid Constitutions are used to denote whether a Constitution is difficult or relatively easy (or not that difficult) to change or amend.
One of the oldest written Constitutions, the Constitution of the United States of America has been amended a total of 27 times since it was adopted in the year 1787. The first ten amendments known as the ‘Bill of Rights’ were amended or inserted in the Constitution in 1791- a mere four years after its adoption.
From 1791 to 2018, a time period of 227 years, a total of 17 further amendments were adopted. Hence the United States Constitution is a ‘rigid’ Constitution.
In Australia since Federation in 1901 (in the past 118 years) only eight amendments were made to the Constitution of the Commonwealth of Australia. (This article will not summarize the Constitutional provisions regarding the amendment processes as stated in the United States and Australian Constitutions which came into force in the years 1791 and 1901 respectively. (Those interested can easily search the requisite information on the world wide web.)

Comparative Stability of the United States, Australian and Malaysian Constitutions
Compared to Constitutions of the United States of America and the Constitution of the Commonwealth of Australia, the Federal Constitution of Malaysia which was adopted and entered into force with Merdeka (‘Independence’) on 31 August 1957 is a relatively new document.
Notwithstanding the apparently numerous (relatively) minor amendments to the Malaysian Constitution its key features or characteristics remain intact. They are constitutional monarchy, separation of powers, parliamentary democracy. Essentially, in Malaysia, they have remained intact for over 61 years now.
Similarly it can be said that the key features of the United States Constitution, constitutional republic, separation of powers (different types of separation of powers from parliamentary democracies) and electoral systems have remained intact over 230 years after its adoption.
Alas, this has not been the case with our golden land of Myanmar. Burma’s fledgling (would some have said ‘flirtation’?) with parliamentary democracy came to an end in the immediate aftermath of the March 1962 military coup. After being without a constitution for 12 years the 1974 one-Party Constitution became an imposed Constitution and it lasted –like its 1947 Parliamentary Constitution- for a period of 14 years. And Myanmar was again without a Constitution from the period of September 1988 to May 2008 when the 2008 Constitution was adopted on 29 May 2008. It came into force when the first Pyithu Hluttaw formed under it was convened on 31 January 2011.

A (Temporary) Malaysian Constitutional Dead Lock of 1993: (Non) Lessons?
Coming back to Malaysia, its Federal Constitution can be described both as flexible or rigid. Indeed to amend some- perhaps most- of its provisions a two thirds majority of the Parliament is all that is needed. And from 1957 to 2008 (the year the 2008 Myanmar Constitution was adopted) the ruling Barisan National coalition have had –except in the few years that the Parliament was not convened between mid 1969 to about 1971- a 2/3 majority in the Malaysian Parliament.
Yet there are a few ‘core’ Constitutional provisions in the Malaysian Constitution which are difficult to amend or change.
One of them is the absolute immunity provided to the nine (9) Sultans of the Malay States. Under its previous constitutional provision no criminal prosecution or civil suit can be made by any one against the ‘Sovereign Rulers’ (i.e. the Sultans). Contrast this previous Malaysian Constitutional provision with the ruling of the late Burmese Supreme Court in the case of E V. Kovtunenko v U Law Yone, decided on 18 March 1960, which held (in a ruling written in English) that ‘not even the President of the Union is above the law’ and that the Penal Code and other laws applied equally to all citizens including the President.
In late December 1992 due to physical beatings a (now) late Malaysian hockey coach had to endure at the hands of (now) late Sultan of a certain state within the Federation of Malaysia then (and now!) Malaysian Prime Minister Mahathir Mohamad spear headed an initiative in the Malaysian Parliament to adopt a constitutional amendment removing the immunity of the Sultans. Consequently, a significant majority of the members of the Malaysian Parliament (perhaps around 80%) promulgated a law that removed the immunity of the Sultans.
But there was a catch: the special immunity and status of the Sultans are protected by a provision of the Malaysian Constitution which stated that even if a constitutional amendment Bill affecting the rights, privileges and special status of the Sultans were to be passed by (say even the entire) Parliament if the Conference of Rulers (a congregation of 9 Sultans) do not agree to it, then it would not become law. And the Bill passed by an overwhelming majority of the Parliament removing the immunity of the Sultans was not agreed upon by all the nine Sultans in the then Conference of Rulers. There was for several days or a few weeks in March 1993, a Malaysian constitutional deadlock.
If politics is the art of the possible then it is the same for constitutional politics (and constitutional law). Both sides in the Malaysian constitutional imbroglio of 1993, eventually compromised. Instead of totally removing the immunity of the Sultans the then Malaysian Parliament drafted an amended constitutional amendment, so to speak, that among others required that (1) before any of the Sultans are prosecuted criminally and sued civilly a written consent of the Attorney-General must be obtained (2) the Sultans and their immediate families cannot be tried in ordinary courts but only in special tribunals or courts and (3) the prosecuted Sultan(s) and their immediate family members have the right to appoint one (out of three) judges in the special tribunals or courts which will try them or consider civil suits against them.
Hence after more than 35 years (from August 1957 to about mid 1993) the absolute immunity of the Sultans stated in the Malaysian Constitution was amended to ‘restrictive immunity’.
Are there any lessons that can be taken from (at least in context and overall) the major constitutional amendment that was effected in Malaysia over 25 years ago in 1993? Perhaps not. Contexts, histories, the political natures and cultures are different. But perhaps this ‘trite’ statement may be applicable to both the past Malaysian and current Myanmar ‘constitutional predicament’ so to speak: when their own rights, privileges, special statuses are negatively impacted upon individuals and institutions would stick to them with all their resources and ‘might’ and to the extent that they can. All the luck, tact and fortuitous circumstances are needed to change or amend constitutional provisions and actual practices of privileged groups.

‘Overcoming’ the 1974 One-Party Constitution in 1988: History Not Repeating Itself
Now to a provision under the defunct one-Party 1974 Constitution of the Socialist Republic of the Union of Burma. Article 194 of the 1974 Constitution reads (in part) that certain Articles including Article 11 which unequivocally, almost sinisterly stated that ‘The State shall adopt a single Party system. The Burma Socialist Programme Party is the sole political party and it shall lead the State’ can only be amended with ‘the prior approval of 75 percent of all the members of the Pyithu Hluttaw [and afterwards] in a nation wide referendum only with a majority or more than half of those of who have the right to vote’ [sic the above phrase was unclearly perhaps ungrammatically translated from the Burmese by the ancien regime’s personnel and it is reproduced here exactly as it is written].
Notwithstanding this provision, on 11 September 1988 the then Legislature the Pyithu Hluttaw passed a resolution to hold ‘multi party elections in no less than 45 days and no more than 90 days’. Significantly, the then members of the Hluttaw were aware of the provisions of Article 194 (of the 1974 Constitution). If multiparty elections were to be held without first holding a referendum then this would have violated the 1974 Constitution.
Hence the then Legislature in its Resolution to hold multiparty elections did state that they did so ‘overcoming the Constitution’(အေျခခံဥပေဒကို ေက်ာ္လြန္ ၍) (specifically Article 11 of the 1974 Constitution). But with the military takeover of 18 September 1988 the promised multiparty elections were postponed to May 1990 and again to November 2010. The military takeovers of both 1962 and 1988 were unconstitutional acts but politically and therefore legally they were extremely indeed supremely effective –albeit this phrase is used if not in the negative then in its ironic sense. (The 1988 takeover was in violation of the 1974 Constitution and the 1962 takeover was a violation of the 1947 Constitution). Only in the aftermath of the November 2015 elections a government which had (apparently) solemnly pledged to amend the 2008 Constitution has had a chance to share power.
History does not always or even generally repeats itself. In mentioning what had happened in the heady days from about mid-August to mid-September 1988- only for such headiness, so to speak, to be crushed indeed smashed- it is certainly not the writer’s intention that a 1988 like scenario vis-à-vis the 1974 Constitution can be expected to occur in 2019 or afterwards vis-à-vis the 2008 Constitution.
Notwithstanding the statement ‘never say never’ an ‘overcoming’ of the 2008 Constitution in the mode and fashion that the one-Party provision of the 1974 Constitution was ‘overcome’ is very unlikely to occur. In fact such a scenario is a political –and therefore a legal improbability.

‘My Fair Lady’ and More than a ‘Little Bit of Luck’
To review and discuss proposals to amend the 2008 Constitution is now one of the tasks of the Pyidaungsu Hluttaw. This particular task that has to be tackled (so to speak) by the honorable elected members of the Pyidaungsu Hluttaw in this and other sessions is quite complicated. They would need to exercise, to their utmost, their ingenuity, their negotiation skills, their discretion but at the same time their ‘pluck’ as well. To paraphrase from the musical My Fair Lady (based on Bernard Shaw’s play Pygmalion) considerably much more than ‘a little bit of luck’ is also needed for their creditable efforts to bear fruit.
Dr. Myint Zan is a legal scholar. The views expressed here are his own.

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