I am for constitutional change, but it must be done properly. Changing the Constitution without full debate and deliberation, uninformed by study and analysis of the impact of our governance options, and without following the right procedures will be disastrous for the country.
The 1987 Constitution served the country well for the last 30 years. However, it is a product of a historical moment – the ouster of a dictatorship and the experience of the Marcos regime. Thus, review and revision are justified. Among others, we have: a presidency that has consolidated most governmental power and consequently separation of powers has been seriously compromised; a unitary system unable to accommodate the demands of the peace process with Moro revolutionary organizations and keeps some regions perpetually underdeveloped; and, finally, intensified sustainable development and social justice challenges, including persistent poverty and inequality.
When President Duterte was elected, I was excited that constitutional change could finally happen. I would like to see in a new constitution some form of federalism, defined as regional governance, and an expanded bill of rights to include explicitly rights of indigenous peoples, overseas Filipino workers, children, persons with disabilities, and women.
But now I advise caution. We will squander this opportunity if constitutional change is not done properly. In governance and policy making, as it is in medicine, the first rule must be to do no harm. Right now, we could be on the road to inflicting serious harm to our country and its future.
In 2012, I co-authored a book entitled “The 1987 Constitution—To Change or Not to Change.” This was written with Joy Aceron, Edgar Bonto and Benedict Nisperos, edited by Dr. Dennis Gonzalez, and published by Anvil Publishing. Based on studies we conducted at the Ateneo School of Government, it was designed as a guidebook on how to change the Constitution. Among others, we explained why past and recent charter change attempts had ended the way they had—when outcomes were successful, when constitutional change was done illegitimately and only caused harm, and when it failed.
There are three lessons from the Philippine historical experience on constitutional change.
First, it must be done transparently, in a participatory and inclusive manner. This is exemplified through the 1935 Constitution, adopted through an elected constitutional convention, and the 1987 Constitution, drafted by commissioners that had representatives from sectors and the opposition who went all over the country for consultations.
Second, the President must not be too involved. He must allow the constitutional convention or constituent assembly to do its job without interference. The 1973 Constitution was originally drafted by a convention of elected delegates but President Marcos hijacked the process and we ended up with an illegitimate outcome.
Third, the constitutional procedure ordained by the Constitution must be strictly followed and not manipulated to ensure a pre-ordained result. The passage of the parity rights amendment that favored US citizens and corporations, adopted via constituent assembly after World War II, was achieved by expelling from the House of Representatives the members of the Democratic Alliance. That led to civil war in Central Luzon and doomed our country to underdevelopment for the next three decades.
Last Wednesday, January 17, the Senate Committee on Constitutional Amendments and Revision of Codes and Laws superbly chaired by Senator Francis Pangilinan, in tandem with other relevant Senate committees, conducted a public hearing on the issue of how to do charter change properly. Attending were former Chief Justices Hilario Davide, Jr and Reynato Puno, Justice and former 1986 Constitutional Commissioner Adolf Azcuna, retired Senator and federalism champion Nene Pimentel, 1986 Constitutional Commissioners Florangel Braid and Ed Garcia, several executive branch officials led by Presidential Counsel Salvador Panelo, and finally a few academics and experts, including Ateneo School of Government Dean Ronald Mendoza, political analyst Mon Casiple, veteran lawyer and my UP Law classmate Al Oxales, and myself.
In that hearing, the independent statesmen and experts were one in making the following recommendations:
First, the best mode of changing the constitutional is still through the constitutional convention route. It may be costlier but we can afford it and we should spend for it, the constitution being the most important law of the land. Chief Justice Puno is right, “To say that lawmakers should resort to a constituent assembly because it would be cheaper is a cheap argument.”
On costs, in another context but in the same hearing, Senator Loren Legarda said that the government has money, “a lot of money”; in my view, we can certainly afford a constitutional convention.
Second, all the independent resource persons agreed that we must study and deliberate on our options. Although constitutional law is not an exact science, we must still seek to be evidence-based in making decisions on the economic provisions and the form of government. Senators Win Gatchalian, Sonny Angara, and Legarda pointed out that the bottom line is the impact of the constitutional changes on the everyday life of our people and the priority issues affecting our country.
In this regard, I endorse the book recently published by the Ateneo University Press, “Debate on Federal Philippines: A Citizen’s Handbook.” I also recommend a serious look at the PDP-Laban proposed charter which is well-thought and has several good ideas. In the next column on this series, entitled, “How to change the constitution,” I will use these materials as well as the 2012 book we wrote.
Third, as articulated by Chief Justice Puno, there must be also be no conflict of interest in the drafting of a new constitution. Politicians and political dynasties must not dominate in the process as the result could be contrary to national interest
Fourth, and last, if the mode chosen is constituent assembly, the voting must be done separately and not jointly. Our Congress is bicameral, and unless otherwise explicitly stated in the Constitution, every decision must be taken by each house separately. Like tango, the chacha needs two to dance.
The leaders of the House of Representatives reject this and is insisting on joint voting. It has even been proposed that the House alone can amend the Constitution as long as the three fourths of all the members of Congress (the members of the House and the Senate combined) vote for the change. That number could be reached without any senator voting.
This interpretation cannot be supported constitutionally, legally, logically. It also would not do, policy-wise. But the fact that it has not been challenged by most members of the House means that this is likely the interpretation that will prevail in that chamber.
I am confident that the Supreme Court will not justify a constituent assembly without the participation of the Senate. Otherwise, it will lose legitimacy. Moreover, a constitution that comes out in such a process will be seriously impaired with illegitimacy from the very beginning; it will be aborted at birth.
An agreement to vote separately—and that is embodied in the joint resolution—will not mitigate the danger. My educated guess is that the Comelec, tasked to conduct the plebiscite for a new constitution, and the Supreme Court, the ultimate arbiter of constitutional decisions, will likely apply the political question doctrine and allow a vote on a new constitution no matter how flawed the process of drafting and adopting it.
The Senate should not agree to a constituent assembly and propose instead a constitutional convention as the best way forward to changing the Constitution. The Senate should also be hardline and expel members that participate in a House-only constituent assembly.
The railroading of a new constitution will render it illegitimate. When political fortunes change, as it surely will, the future leaders and the people will quickly revoke such a charter. Such a constitution is the recipe of disunity, of instability. Let’s not go there. That is the perfect example of how not to change the Constitution.
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