Constitutional amendment processes
Let me now turn to the body or bodies empowered to amend the constitution, and the delineation of provisions subject to this process.
Some constitutions expressly exempt some provisions from constitutional amendment.
In this case of the eternity clause, the constitution defines its own basic structure, and nothing need be implied - indeed one could say that nothing ought to be or could be implied, because the constitution-makers have squarely addressed the issue and drafted text that deals definitively with it. The German Basic Law goes further to say that the people can replace the entire constitution by an act of popular sovereignty.[923] This probably goes without saying, as no constitution is irreplaceable irrespective of whether it seeks to allow or prohibit such replacement.Thus, while we may be justified in implying limitations on the power of constitutional amendment, going beyond the precise text where appropriate, we may not be justified in doing so where the constitution defines its own basic structure and delineates specifically how such basic structure may be amended. In this case, implied limitations, it appears, are inevitably precluded.
An example that springs to mind here is Myanmar's Constitution of 2008,[924] which contains two processes for constitutional amendment. The first is that a bill for amending the Constitution must be passed by more than 75% of the members of each house of parliament.[925] This applies to all provisions of the Constitution. The second is that a bill must be approved by a majority of the registered voters in a referendum, and this is applicable only to the most important provisions, as these are defined in the Constitution itself. This is an example of what has been referred to as “tiering” of constitutional amendment processes.[926] In this situation, I do not see how the BSD can have any application, because it would create large areas of ambiguity, and does not answer the question why we need to second- guess the constitution-makers' decision as to what is basic and what is not.
We do not need to imply anything here, and such implication would fly in the face of, rather than interpret, the text. We would also be forced to conclude that there would be cases in which, say, 80% of the members of both houses and 75% of the voters agreed to an amendment, yet it might still be an unconstitutional amendment that violates the basic structure as determined by the courts - in this case the Constitutional Tribunal. This contradicts the very popular assent on which the BSD itself is based. Myanmar's constitution may, however, be argued not to be entrenched. Given the military coup of 1 February 2021, which was ostensibly an exercise of emergency powers pursuant to the Constitution, it seems likely that most people in Myanmar would be very happy for it not to be entrenched. It was subject to a 2008 referendum approving it, but prevailing opinion is that this process was deeply flawed, and replacement of the 2008 Constitution is required and perhaps even likely to occur.[927]It is hard to see how the BSD could plausibly be used to entrench such elements of the basic structure as praetorian provisions protecting the dominant role of the military. Such a position would run decidedly counter to every constitutional principle the BSD was invented to protect, and has been overwhelmingly rejected by the people of Myanmar in street protests since the coup. The reality is that in Myanmar, over ten years and for the time being, no constitutional amendment of any significance has been or is likely to pass, and that includes both ameliorative and destructive amendments.[928] Indeed, it is plausible that the unsuccessful attempts in 2013 and 2020 to amend the constitution may well have led to the coup, as the ruling party had received endorsement for change in the November 2020 election, and such change could only be to the detriment of the military power.
I conclude here that the BSD results from implication of basic structure and the manner of its protection, and must give way where the constitution expressly defines the basic structure and provides for the extent of its entrenchment. The BSD is especially problematical in such cases when provisions are protected by a referendum requirement. In the case of Singapore, for example, only one aspect of the constitution is protected in this way. Any bill restricting the sovereignty of Singapore must be approved in a referendum.[929] How could we apply the BSD to that most basic of all principles, the sovereignty itself of an independent republic? Clearly, we cannot do so in such a case, because provision is made for the people themselves to determine the issue.[930]
13.6