Amending an existing Constitution

This session explored the experiences of states that choose to amend an existing Constitution rather than make a new one.

In some cases a decision to amend rather than replace is effectively dictated by circumstances, ranging from the scope of the changes envisaged to the politics of constitutional change. In other cases, the decision is more open, although there always will be factors that influence the choice that is made. In a few cases, of which the Philippines is an example, the existing Constitution provides for choice between amending procedures, raising further questions about a preference for one or another. And in some cases, there may be an option for returning to and amending an earlier Constitution, rather than the one that is presently in place.

Whatever the motivation, the decision to proceed by way of amending an existing or previous Constitution has consequences, for the processes that are followed and, perhaps, the outcomes achieved. On balance, constitutional amendment is more likely to retain the pre-existing legal and institutional framework than formal constitutional replacement. And in some constitutional systems, constitutional amendments also are subject to review by a court.

The case studies explored issues relating to:

• The factors that influenced the decision to amend the existing Constitution rather than make a new Constitution;
• The point in the process at which it was decided to amend the Constitution and how this decision was made;
• Ways in which legal continuity was or was not maintained;
• The choice of formal procedures for constitutional amendment and other supplementary procedures;
• The effect of the possibility of judicial review on the scope of the amendments;
• The sources of comparative experience and other international influences brought to bear on constitution making; and
• What might have been done differently in hindsight and insights for other countries dealing with similar issues.

Case studies:

Indonesia – Jimly Asshidique
Pakistan – Sadaf Aziz
Taiwan – Wen-Chen Chang
Argentina – Gabriel Negretto