1
October 2018
Summary
This issue of Constitutional INSIGHTS
examines the choice between making
a new constitution and amending
an existing constitution to achieve
substantial constitutional change.
This choice arises in the early stages
of constitution building. It is likely to
aect the constitution-building process
and it may have signicance for the
perceived legitimacy of the changes.
The choice between a new or amended
constitution may, in context, also
aect the success of the constitution-
building exercise.
About this series
The Melbourne Forum on Constitution-
Building in Asia and the Pacic
is a platform co-organized by the
Constitution Transformation Network
and International IDEA.
It brings together scholars and
practitioners of constitution building
from across the region, to share their
perspectives on critical issues, as a
contribution to global understanding of
the eld.
This series captures insights from the
Melbourne Forum in an accessible and
practice-oriented format.
For more Constitutional IN SIGHT S, and
to learn more about the Melbourne
Forum, visit the Constitution
Transformation Network website:
<http://law.unimelb.edu.au/
constitutional-transformations #mf >
Constitutional beginnings:
Making and amending
constitutions
Introduction
is issue of Constitutional INSIGHTS examines the choice between
making a new constitution and amending an existing constitution
to achieve substantial constitutional change. is choice arises in the
early stages of constitution building, is likely to aect the constitution-
building process and may have signicance for the perceived legitimacy
of the changes. e choice between a new or amended constitution
may also aect the success of the constitution-building exercise.
Despite its importance, the benets and risks of making a new
constitution or amending an existing constitution are not always
explicitly considered, even when both options are, in principle, open.
e decision is generally determined by those leading the constitution-
making process at the outset with little public discussion.
is issue of Constitutional INSIGHTS addresses three questions:
1. What is the dierence between making a new constitution and
amending an existing constitution?
2. What factors inuence the choice between making a new
constitution and constitutional amendment?
3. What is the signicance of the choice between making and
amending a constitution for constitution-building processes?
1. What is the dierence between making a new
constitution and amending an existing constitution?
When considering substantive changes to a written constitution,
constitution-makers must decide whether to make an entirely new
constitution or amend the existing constitution. e distinction
between making a new constitution and amending an existing
constitution is not always clear cut. Much depends on the criteria used
to make the distinction.
Constitutional INSIGHTS No. 1
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
1.1. The procedural dierence between making and amending
a constitution
Making a new constitution
Making a new constitution involves drafting and ratifying a new
written constitution in its entirety, completely replacing the existing
constitution (where one exists). Depending on the circumstances, a
new constitution may (a) entail a clear break with the past constitution
and be made according to new processes that are accepted as
legitimate for making a new constitution; or (b) retain legal continuity
with the previous constitution by following the procedures that it
lays down for amendment or, in some cases, for replacement of the
constitution as a whole.
e case of Sri Lanka illustrates the dierences between the two
approaches to making a constitution. In 1972, following a mandate
given by the people at the 1970 general election, a Constituent
Assembly comprising all members of the Sri Lankan House of
Representatives drafted and adopted a new constitution in accordance
with its own procedures, rather than following those set out in
the 1946 Constitution that it replaced. In contrast, in 1978, a new
Constitution was enacted by a super-majority of the Sri Lankan
Parliament, following the procedure for constitutional replacement set
out in the 1972 Constitution.
Amending an existing constitution
Substantial constitutional reform may also be achieved through
existing constitutional amendment processes. ese vary between
constitutions but almost always involve procedures that are more
dicult than making or changing ordinary legislation. By denition,
legal continuity is preserved. ere is thus a ne line between
constitutional amendment and replacement of the entire constitution
in a way that retains legal continuity, as described in the previous
section. To complicate matters further, in some states, of which
the Republic of Korea (South Korea) is an example, signicant
amendment of an existing constitution may be equated to the
introduction of a new constitution.
In the interests of clarity, the idea of amendment in this issue of
Constitutional INSIGHTS is used to cover any change to particular
provisions or parts of an existing constitution without replacing the
constitution entirely. e idea of making a new constitution will be
used to cover all cases where a new constitution is drawn up to replace
an existing one, whether legal continuity is preserved or not. In
dealing with making a new constitution, we will distinguish between
cases where legal continuity is preserved and when it is not, if it is
relevant to do so.
1.2. The substantive dierence between a ‘new’ and
an ‘amended’ constitution
It might be assumed that signicant changes to the substance of
the constitution will generally be given eect through an entirely
new constitution and that less signicant changes will be made by
amendment. is assumption has some strengths. It will usually be
undesirable to undertake the huge task of making a new constitution
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
in order to achieve a specic change. On the other hand, if major
structural change is required to, for example, move from a unitary to a
federal system, a new constitution will often be needed, to ensure that
all parts of the constitution work together as a whole.
In practice, however, this rule of thumb for identifying the dierence
between new or amended constitutions requires qualication.
For example, depending on the circumstances, constitutional changes
that take the form of amendments sometimes are so sweeping that
they amount in substance to a new constitution. Indonesia oers
an example, where democratization occurred through a series of
constitutional reforms from 1999 to 2002, signicantly restructuring
the existing constitutional system. Changes were made to over 80 per
cent of the original Constitution, all through a series of amendments.
By contrast, even where a new constitution is made, the text will
often retain elements of earlier constitutions. For example, although
the new 1987 Constitution of the Philippines marked a complete
legal break from the constitution under which former authoritarian
regime operated, it incorporated many of elements of the previous
constitution, including the presidential system. Similarly, while
ailand has had many new constitutions over its history, provisions
relating to the monarchy, the parliamentary form of government, the
form of the state and the process for constitutional amendment have
remained largely the same.
2. What factors influence the choice between
making or amending a constitution?
A combination of factors inuences the choice between making a new
constitution or amending an existing constitution. e signicance
of each factor varies depending on the context in which constitution-
building occurs.
2.1. The status of the existing constitution
e status of an existing constitution will aect the degree to which
constitutional amendment, as opposed to a new constitution, is
desirable or even possible.
Where there is no existing constitution, it will be necessary to
make a new one. is is most often the case for newly independent
states, which make a new constitution to formalize the institutions
and structures of self-government and to mark their statehood and
independence. Timor-Leste is an example, where a new constitution
was promulgated in 2002 after the new state gained independence
from Indonesia. Another situation where a new constitution may be
considered necessary for this reason is where there has been an earlier
constitution, but it has been inoperative for some time, after having
been abrogated or replaced for some reason. Fiji is an example, where
a new constitution was made in 2013, after the earlier constitution
was abrogated in 2009. As the case of Fiji shows, in such a situation,
there may be divisions in the community over whether to make a new
constitution or to return to the earlier one.
A combination of
factors influences
the choice between
making a new
constitution or
amending an existing
constitution, including
the status of the
existing constitution,
politics and control
of the agenda,
and constitutional
tradition
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
Where the existing constitution is highly respected and has a deep
symbolic force, eective substantial constitutional change by way
of amendment may be more attractive. For example, there is a deep
attachment to the 1875 Constitution of Tonga, arising from history,
the freedoms and rights it enshrined, its endurance, and respect for
the monarchy. Signicant constitutional changes were made in 2010
to shift key powers away from the monarch and place them in the
hands of elected representative branches of government, as well as to
recongure the composition of the legislature, but these took the form
of amendments to the original Constitution.
Where the existing constitution is discredited, a new constitution
might be made to symbolically mark a new beginning. e legitimacy
of the existing constitution might be tainted as a result of its origins
in an authoritarian, colonial, or oppressive regime. For example, in the
Philippines after the fall of the authoritarian Marcos regime, the new
government issued a unilateral proclamation establishing a provisional
constitution, laying the way for the new nal Constitution of 1987.
Similarly, in Nepal, the comprehensive peace agreement that brought
an end to the conict called for a complete restructuring of the state
under a new constitution.
2.2. Political considerations
Political considerations may aect the decision whether about how
best to aect constitutional change.
e political dynamics may be such that one approach is more
feasible than another. For example, if constitutional amendment
requires a supermajority in the legislature that is unlikely to be
achievable, an attempt to make a new constitution, without legal
continuity, may seem preferable. Equally, if a new constitution is
deemed to require a process that is likely to be dicult to pursue
successfully (for example, a state-wide referendum), decision-makers
may attempt to secure changes through constitutional amendment.
In some circumstances, constitutional amendment may represent a
compromise position between those seeking major change and those
opposed to any signicant change. Constitutional amendment may
appeal to the reformers as a way of ensuring some development and
to their opponents as a way of conning the scope of change. e
Republic of China (Taiwan) oers an admittedly unusual example,
where the desire of some internal political forces to retain the existing
constitution, at least in outward form is reinforced by external
pressures from the People’s Republic of China and the United States.
Constitutional amendment might be preferred by political leaders as
a way of retaining control of the agenda in any event. A decision to
make a new constitution potentially opens all parts of the constitution
up to debate and change in a way that cannot be controlled. By
contrast, constitutional amendment identies the constitutional issues
that are on the table and is more likely to conne the scope of change.
Indonesia oers an example of these factors in operation. e
constitutional changes to support democratization in Indonesia took
the form of a series of four constitutional amendments over the period
from 1999 to 2002. During this period, there was much discussion
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
over whether these changes should be by way of amendment of the
existing constitution, or in a new constitution.
e preference for amendment at the early stages reected a desire to
maintain the integrity of the 1945 independence Constitution, and
in particular the Pancasila principles set out in the preamble. is
desire was also reected in the idea, expressed in early debates, that
amendments be included in the Constitution by way of an addendum
rather than incorporated into the text of the constitution (although
this practice was not followed for amendments made later in the
reform process). Another reason to prefer amendments over making
an entirely new constitution was to maintain the national symbolism
of the 1945 Constitution and to avoid opening up contentious issues
relating to religion and the state.
2.3. Constitutional tradition
Many countries have underlying constitutional traditions that inuence
how substantive constitutional change is and should be made.
Legal continuity might be more important in some constitutional
traditions than others. Where this is the case, there is likely to be a
preference for achieving substantial change through constitutional
amendment or through a new constitution that is made in accordance
with relevant procedures laid down by the earlier one. All else being
equal, as a generalization to which there are exceptions on either side,
states in a constitutional tradition inuenced by the common law tend
to assume the need for continuity. is may at least partly explain the
history of achieving change through constitutional amendment in, for
example, India, Papua New Guinea and Singapore.
By contrast, other constitutional traditions may accept or even
require approval of major change by the constituent power in ways
that do not retain legal continuity with the earlier constitution. e
Philippines again oers an example, in very distinctive circumstances.
e country’s 1987 Constitution was made in the context of a People’s
Revolution that ousted a dictatorial president and installed a new,
democratic regime.
is constitution-making process was initiated by a promulgation
from the revolutionary government under President Aquino, which
abolished the existing constitution and called for a new constitution to
be made by a Constitutional Commission. is complete break with
legal continuity reected the authority of the people’s movement and
its calls for democratic change. It suggests that, in these circumstances
at least, an extra-constitutional response was acceptable and
appropriate.
3. What is the signicance of the choice between
making or amending a constitution for constitution-
building processes?
e signicance of the choice between making a new constitution
and amending an existing one will depend to some extent on context.
is section sets out three sets of issues that are likely to be relevant
in all cases.
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
3.1. Legal requirements and flexibility in choice of process
A decision to amend an existing constitution will always require
compliance with the procedures for amendment that the constitution
prescribes. ese vary between constitutions. Common procedures,
separately or in combination, involve supermajorities in the legislature,
constitutional or constituent assemblies and referendums.
Some constitutions prescribe dierent amending procedures,
depending on the nature of the amendments proposed. For example,
while the Constitution of India generally can be amended by a two-
thirds majority in each house of the parliament, amendments that
aect specic provisions relating to the federal structure must also be
ratied by the legislatures of more than half of the constituent states.
Several other countries in the region take a similar tiered approach to
amendment, in order to more deeply entrench specic provisions or
fundamental constitutional values (see e.g. the constitutions of Papua
New Guinea, Singapore, Sri Lanka and Vanuatu). Some even include
eternity clauses, which prohibit amendments to certain constitutional
provisions or ideals (see e.g. the constitutions of Timor-Leste,
protecting rights, democracy and specied political values; Indonesia,
protecting the unitary and republican form of the state; and Malaysia,
protecting succession rules).
Where the legal requirements for constitutional change are deemed to
present too high a bar, it may sometimes be possible to achieve change
through a two-stage process that retains legal continuity. is involves
amending the constitutional provisions that prescribe the procedures
for change, as a rst step, before proceeding with more substantive
amendments.
A decision to make a new constitution, on the other hand, is likely
to give decision-makers greater exibility to determine the processes
to be followed. A new constitution may be made in accordance with
the requirements set out in the existing constitution for constitutional
amendment or replacement. However, in situations where there is
no existing constitution, or where legal continuity is not required,
those directing the constitutional process will have some freedom to
determine the procedures by which the new constitution is made. It
will be important to choose procedures that will ensure that the new
constitution is accepted as legitimate. ese are likely to involve a
constituent assembly of some kind and/or a referendum, to demonstrate
that the constitution has the support of the constituent people.
3.2. Other processes, including public participation
It is now well-established that public participation and other
processes to ensure inclusion and ownership are expected when a new
constitution is made. is is less well-established for constitutional
change by way of amendment of an existing constitution, where it
is often assumed that legitimacy can be secured simply by ensuring
legal continuity. In these circumstances, little consideration may be
given to popular participation even when, as in Indonesia, the changes
are sweeping. Nevertheless, there is nothing to prevent popular
participation and other procedures to make the process more inclusive
Legitimacy refers
to the qualities of
a constitution that
explain and justify
why people and
governments consider
the constitution to
be authoritative and
binding and why they
obey it
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
being used in association with constitutional amendment. Whether
popular participation should be used will depend on the advantages
that it is likely to bring in each case.
When a new constitution is made, public participation oers a
mechanism for building legitimacy. It seeks to ensure that the
views of all signicant social and interest groups within a society
are considered. In conict-aected or divided countries, this may
enable aggrieved communities to share their experiences and ideas. It
may also bring in potential spoilers. Depending on the context, this
might require engagement with insurgent or combatant groups (e.g.
the current constitutional processes in Myanmar), representatives of
minorities and indigenous peoples within the state (e.g. Nepal), or
with diaspora outside the state. Public participation also provides an
avenue for those leading the constitution-making process to explain
and justify their proposals to the wider population. is may be
critical where proposals are to be put to the people at referendum
for approval. e advantages of public participation often also apply
where changes are made through constitutional amendment.
Mechanisms for public participation may include elected or appointed
citizens assemblies to discuss and advise on proposed changes, direct
consultation processes such as meetings and written submissions,
and wider public consultations such as crowdsourcing or deliberative
polling (which was trialled recently in Mongolia). Randomly selected
citizens from across the country were brought together to discuss
a range of constitutional issues at a public forum. Each participant
then completed a survey or poll to nd out their views on each issue.
It was proposed that their collated responses would be used by the
Parliament to help inform their constitutional amendment process.
Sometimes, public-participation processes might be mandated by
formally changing the rules for amendment of the Constitution. For
example, ailand’s 1997 Constitution was made following public
uprising against the military dominated government. Article 211 of the
existing 1991 Constitution originally set out a process by which the
House of Representatives could amend the constitution. In response
to calls for a new, democratic constitution, the government amended
this provision in 1996 to provide for the creation of an indirectly
elected Constitution Drafting Assembly, to debate and approve a new
constitution, before it was formally adopted by the parliament. It is
not always necessary to amend the constitution to provide for such
procedures. Depending on the context they may instead be set out
in legislation, included in a peace agreement, or conducted under the
auspices of those charged with constitutional review.
3.3. The role of the courts
Courts can be signicant actors in processes of constitutional change,
in ways that also dier between making a new constitution and
amending an existing one.
Constitutional change by amendment is more vulnerable to judicial
review, because it must comply with provisions for amendment in the
existing constitution. As part of its role in interpreting and upholding
the constitution, courts generally have authority to examine whether
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Melbourne Forum Constitutional INSIGHTS No. 1, October 2018
an amendment complies with the procedural requirements. Courts in
some countries, including India, Papua New Guinea and Taiwan, have
gone further and considered whether the substance of a constitutional
amendment is consistent with the existing constitution, applying
what sometimes is called the basic structure doctrine. In some
contexts, judicial oversight of this kind might provide an important
check on constitutional amendment, inhibiting abuse by powerful
actors. In other contexts, however, judicial review can put a brake on
constitutional reforms; can act conservatively to entrench the status
quo; and can disturb constructive political compromises.
ese issues are less likely to arise in making a new constitution,
at least in cases where legal continuity is not required. On the other
hand, judicial review sometimes can play a role in these circumstances
as well. One notable example arose in Nepal, when the Supreme
Court refused to allow the rst Constituent Assembly to further
extend its tenure to make a constitution. e rst Constituent
Assembly had been deliberating for more than four years and had
already extended its own deadline. As a result of the Supreme Court’s
decision, a second Constituent Assembly was elected, which did
produce a new Constitution.
References and further reading
Böckenförde, M., Constitutional Amendment Procedures, International
IDEA Constitution-Building Primer No. 10, September 2014,
<https://www.idea.int/publications/catalogue/constitutional-
amendment-procedures>, accessed 5 October 2018
Chang, W.-C., io, L., Tan, K. YL and Yeh, J.-R., ‘Constitutional
Change and Amendments’, in Constitutionalism in Asia: Cases
and Materials (Oxford: Hart Publishing, 2014)
Constitution Transformation Network and International IDEA,
Second Melbourne Forum on Constitution Building in Asia
and the Pacic, Manila, e Philippines, 3–4 October 2017,
Interim Report, <https://law.unimelb.edu.au/constitutional-
transformations/MF/melbourne-forum-2017/interim-report>,
accessed 5 October 2018
About International IDEA
The International Institute
for Democracy and Electoral
Assistance (International IDEA) is an
intergovernmental organization with
a mission to support sustainable
democracy worldwide.
<http://www.idea.int>
About the Constitution
Transformation Network
The Constitution Transformation
Network within Melbourne Law
School brings together researchers
and practitioners to explore the
phenomenon of constitutional
transformation.
<http://law.unimelb.edu.au/
constitutional-transformations>
Disclaimer
International IDEA publications are
independent of specic national or
political interests. Views expressed
in the Constitutional INSIGHTS series
do not necessarily represent the views
of International IDEA, or those of its
Board or Council members.
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