We had a lot of interest in our article about the upcoming Queensland state referendum. A lot of people were surprised to learn that much of the Queensland Constitution can be changed by a simple Act of parliament.
As Australians we tend to think that constitutions can only be changed through a referendum. And this is true for the Australian Constitution. But did you know that constitutions around the world are able to be altered via different methods? This week in the CCF we’re going to examine how constitutions are changed in a couple of other countries.
But first we’ll start with Australia
Section 128 of the Australian Constitution stipulates how the Constitution can be altered. It’s a long section and you can click here to go to it. To summarise, the proposed law for alteration must pass both Houses of Parliament, then within two to six months the proposed change must be voted on by the electors. If a majority of the states (at least 4) and a majority of the electors approve the change it will be assented into law. There are circumstances where the referendum can go ahead if passed in only one house and there are protections for each state from any referendum that would diminish their proportional representation.
We’ve written quite a bit about Australian referendums:
- Are politicians keeping you uninformed about the planned referendums and plebiscites?
- Switzerland v Australia: Stable government through Constitutional referendums
- Could the circumstances of the recent Greek referendum occur in Australia?
- CEFA advocates “Educating about Recognition”
Let’s explore what they do in a couple of other parts of the world to change their constitutions.
As one of the most well-known constitutions, we thought you might be interested in how alterations can occur. You might be surprised to learn that amending the Constitution in the US does not require a referendum. The method for amending the Constitution of the United States of America is found in Article V. It’s a bit of a mouthful:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Did you get that? It seems quite complicated. Let’s break it down.
There are two possible methods for changing the US Constitution. The first one involves two-thirds of both houses (the members and senators that are present) of congress proposing Constitutional amendments and then three-quarters of the State governments ratifying the change.
The other option is that two-thirds of State legislators request congress to call a constitutional convention for proposing amendments and then three-quarters of the State governments ratifying the change.
Since 1789 thirty-three amendments have been approved by the United States Congress. Twenty-seven of those have been approved by the states and are now part of the Constitution. All of these amendments were initiated by the first method, with two-thirds of the Congress proposing the change.
The Constitution of Myanmar has gained some attention in the last year, so we thought you might like to take a closer look at how it can be amended.
The first Constitution of Myanmar was drafted in 1947 and suspended in 1962. The second Constitution was approved by a referendum in 1973 and created a unicameral parliament. However, the military seized power in 1988 and suspended this Constitution. Then in 2008 the military government of Myanmar wrote a third constitution including a bicameral parliament, which was put to a referendum. Whether this referendum was conducted in a free and fair manner has been disputed, however it passed and the Constitution was enacted. The 2008 Myanmar Constitution stipulates that 25% of all parliamentary seats are reserved for military officers who are nominated by the Commander-in-Chief of the Defence Services.
Like many countries, the Myanmar Constitution is very long and runs to 213 pages. You can read it here. Chapter XII outlines the method of amending of the Constitution, which involves a bill with a proposal to amend the Constitution being submitted to the Pyidaungsu Hluttaw (the bicameral legislature). If 20% of the representatives of the parliament submit to the bill, it must be considered.
Once submitted, all sections of the Constitution must receive the approval of 75% of the members of both houses of parliament to be amended, while some sections then need secondary approval of more than half of the electorate in a referendum. With 25% of the legislature made up of military officers, unless there is military approval of the amendment, it is unlikely the amendment bill will pass. The bill would need the approval of every single other person in parliament.
In 2015 the National League for Democracy party swept into power in Myanmar. The leader of the party, Aung San Suu Kyi is ineligible to become the President due to section 59f of the Constitution:
59. Qualifications of the President and Vice-Presidents are as follows:
(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;
Aung San Suu Kyi’s children are citizens of a foreign country (Britain), preventing her from becoming president without a constitutional amendment. Amending this section requires the double approval of 75% of the parliament and more than half of the electorate in a referendum.
Providing the mechanism for amendments of a constitution is a balancing act. It is important that a constitution can be amended to allow for effective democracy. But it shouldn’t be so easy that it can be amended for flippant reasons/power-grabs or so hard that the operation of government is threatened in a changing world.
The Constitute project has an easily searchable database of constitutions from around the world. You can quickly compare how different constitutions are able to be amended. Click here to take a look at this excellent resource.
And of course, if you have an opinion on this topic, let us know in the comments below or check out our facebook page and join the conversation there.
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