The nation after adopting and promulgating the Constitution will have to make amendments as necessary depending on time and situation

Yangon, 10 Nov- The following is the clarification made at the Plenary Session of the National Convention held in Nyaunghnapin Camp, Hmawby Township, Yangon Division, today, by Chairman of National Convention Convening Work Committee Chief Justice U Aung Toe on laying down detailed basic principles for the Chapter "Amendment of the Constitution" to be included in drafting the State Constitution.

Mr Chairman and delegates,

The Chapter "Amendment of the Constitution" to be included in formulating the Constitution will be explained.

The nation after adopting and promulgating the Constitution will have to make amendments as necessary depending on time and situation. When the amendments of the Constitutions of some nations are studied, there are two ways to amend a Constitution. The first method is to hold a referendum to make an amendment of some provisions of the Constitution after 75 per cent of all the MPs or three-fourths of the MPs have made a prior approval to amend them. The second method is to amend some provisions of the Constitution with the approval of 75 per cent of all MPs or three-fourths of the MPs. The "Amendment of the Constitution" has been prescribed in the Constitution as a separate Chapter. In the Union of Myanmar also, the topic has been provided as a separate Chapter in both the 1947 Constitution and the 1974 Constitution.

Mr Chairman,

If there arises a matter to amend the Constitution, the method of amendment should be designated. The method is that every proposal for an amendment should be in the form of a Bill, and that the Bill should contain no other proposals.

As regards the matter, the section 208 of the 1947 Constitution prescribed as follows:

(1) Every proposal for an amendment of this Constitution shall be in the form of a Bill and shall be expressed as a Bill to amend the Constitution.

(2) A Bill containing a proposal or proposals for the amendment of the Constitution shall contain no other proposals.

The delegates will have to discuss and give suggestions whether the following detailed basic principle should be laid down or not:

"If there is wish to amend anyone of the provisions of this Constitution, the following methods shall be applied:

(a) The proposal to amend the Constitution shall be submitted in the form of a Bill.

(b) A Bill to amend the Constitution shall contain no other proposals."

Mr Chairman,

It has already been explained in the above paragraph that the proposal to amend the Constitution shall be submitted in the form of a Bill. But the question is "Which of the two Hluttaws should initiate the Bill?" This should be stated exactly. The section 209 (1) of the 1947 Constitution stated, "Such Bill may be initiated in either Chamber of Parliament." And in the 1974 Constitution there was only one Hluttaw, and it was stated as follows:

(c) Members of the Pyithu Hluttaw may submit to the Pyithu Hluttaw motions for amending this Constitution.

(d) If a People's Council wishes to submit a motion for amending this Constitution, such a motion shall be submitted stage by stage from the lower to the higher levels and finally to the Pyithu Hluttaw.

The new Constitution will have two Hluttaws - the Pyithu Hluttaw and the Amyotha Hluttaw. The Pyidaungsu Hluttaw comprises the said two Hluttaws. Only the Pyidaungsu Hluttaw will draft bills and promulgate laws.

Hence, the delegates will have to discuss and give suggestions whether the following detailed basic principle should be laid down or not.

"Such Bill to amend the Constitution may be initiated in the Pyidaungsu Hluttaw."

Mr Chairman,

It has already been explained that the Bill which seeks to amend the Constitution may be initiated in the Pyidaungsu Hluttaw. Instead of submitting the Bill directly to the Pyidaungsu Hluttaw, there should be a stipulation, and the submission of the Bill should be in accord with the provisions.

As regards the matter, the section 209 (2) of the 1947 Constitution prescribed, "After it has been passed by each of the Chambers of Parliament, the Bill shall be considered by both Chambers in joint sitting. According to the said constitution, the Bill can be initiated in either Chamber of Parliament. It means that the Chamber that initiates the Bill will have to pass it to be discussed at a joint sitting. According to the above-mentioned point it has already been explained clearly that, the Bill can be submitted only to the Pyidaungsu Hluttaw. The Pyidaungsu Hluttaw should consider discussing the Bill only if 20 per cent of all the members of the Pyidaungsu Hluttaw submit it.

In this regard, the delegates will have to discuss and give suggestions whether the following detailed basic principle should be laid down:

"The Pyidaungsu Hluttaw shall accept the Bill to amend the Constitution for consideration, if 20 per cent of all the Pyidaungsu Hluttaw members submit it."

Mr Chairman,

It has already been explained the methods to submit the Bill to amend the Constitution. Now, the specific methods to amend the specific provisions of the Constitution will be explained. In the Constitutions of some nations, it is prescribed that the main provisions can be amended after seeking the public approval at a nation-wide referendum, and that some provisions can be amended only with the approval of the members of the Chamber concerned. In other nations, some provisions can be amended with the proportionate ratio of the votes of all the MPs.

The 1947 Constitution of Myanmar prescribed, "The Bill shall be deemed to have been passed by both Chambers in joint sitting only when not less than two-thirds of the then members of both Chambers have voted in its favour." The 1974 Constitution prescribed the amendment of the Constitution in a separate Chapter, which said, "The main articles shall be amended with the prior approval of 75 per cent of all the members of the Pyithu Hluttaw, in a nation-wide referendum only with a majority vote of more than half of those who have the right to vote. Provisions other than those mentioned in the Clause shall be amended only with a majority vote of 75 per cent of all the members of the Pyithu Hluttaw."

According to our study, the Constitutions prescribe the amendment of the provisions chapter by chapter and article by article. Only then can the specific methods of the specific chapters and articles be clearly known. But the amendment of the provisions can be arranged chapter by Chapter and article by article only at the stage of drafting the Constitution. At present, the situation is not ripe yet to state the amendment of the provisions chapter by chapter and article by article as we are only at the stage of adopting detailed basic principles.

In laying down the detailed basic principles, specific methods for specific chapters should be designated based on the chapters that have been adopted. It is opined that , only at the stage of drafting Constitution, the methods to be followed in making amendments of the respective chapters and articles should be prescribed in detail, so the Constitution will be clear and easy to understand.

Hence, discussions are to be held and suggestions to be made whether the following basic principle should be laid down or not:

"(a) The adopted provisions of the State Fundamental Principles, the State Structure, the Formation of Legislature, the Formation of Executive, the Formation of Judiciary, and the State of Emergency shall be amended with the prior approval of more than 75 per cent of all the members of the Pyidaungsu Hluttaw, in a nation-wide referendum only with a majority vote of more than half of those who have the right to vote.

(b) Provisions other than those mentioned in the paragraph (a) shall be amended only with a majority vote of more than 75 per cent of all the members of the Pyidaungsu Hluttaw.

(c) Articles that are concerned with or inclusive in Chapters stated in the paragraph (a) shall be prescribed when drafting the Constitution."

Mr Chairman,

Based on the study and appraisals, a collection of detailed basic principles that should be laid down for the Chapter "Amendment of the Constitution" is presented as follows:

1. If there is wish to amend anyone of the provisions of this Constitution, the following methods shall be applied:

(a) The proposal to amend the Constitution shall be submitted in the form of a Bill.

(b) A Bill to amend the Constitution shall contain no other proposals.

2. Such Bill to amend the Constitution shall be initiated in the Pyidaungsu Hluttaw.

3. The Pyidaungsu Hluttaw shall accept the Bill to amend the Constitution for consideration, if 20 per cent of all the Pyidaungsu Hluttaw members submit it.

4. (a) The adopted provisions of the State Fundamental Principles, the State Structure, the Formation of Legislature, the Formation of Executive, the Formation of Judiciary, and the State of Emergency shall be amended with the prior approval of more than 75 per cent of all the members of the Pyidaungsu Hluttaw, in a nation-wide referendum only with a majority vote of more than half of those who have the right to vote.

(b) Provisions other than those mentioned in the paragraph (a) shall be amended only with a majority vote of more than 75 per cent of all the members of the Pyidaungsu Hluttaw.

(c) Articles that are concerned with or inclusive in Chapters stated in the paragraph (a) shall be prescribed when the Constitution is drafted.

Mr Chairman and delegates,

The delegates are requested again to consider whether the collection of detail basic principles that have been presented should be adopted or not.