Making a new Constitution

Mr Benedicto Bacani (Philippines)

Constitution building in any state with an existing Constitution involves a decision whether to amend that Constitution (or, sometimes, an older one) or to make a new Constitution.

Obviously this is not a choice that needs to be made where no Constitution existed before as, for example, in Timor Leste. In other circumstances a new Constitution may effectively be necessary because, for example, the previous one has lapsed and cannot practically be reinstated; or is considered illegitimate as foundation for transition (arguably, the Philippines in 1987); or is necessitated by terms of a peace agreement. In other cases, however, the decision may be more open and the choice may be governed by a wide range of legal, political, symbolic, or pragmatic factors.

Whether the choice to make a new Constitution is deliberate or not, it is relevant to the questions of how and why particular Constitution making procedures were used and how the expectations and tensions generated by a major constitutional moment were managed. Depending on the circumstances, a decision to make a new constitution may also have implications for the perceived legitimacy of the Constitution and the challenges of constitutional implementation. Potentially, in these circumstances, all existing institutions are subject to renegotiation and change. The process also may be time consuming, raising questions about how the country is governed in the interim.

L-R: Mr Mariyam Zulfa (Maldives), Javier Couso (Chile)

The case studies explored issues relating to:

  • The factors that influenced the decision to make a new Constitution rather than amend an existing or former Constitution;
  • The point in the process at which it was decided to make a new Constitution, and how this decision was made;
  • The process for making the new Constitution and how it was managed;
  • Ways in which legal continuity was or was not maintained;
  • How much, if any of the old Constitution was retained in the new Constitution;
  • 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:

Philippines Constitution of 1987– Benedicto Bacani
Maldives – Mariyam Zulfa
Thailand – Borwornsak Uwanno
Chile – Javier Couso