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Friday, March 29, 2024

How to change the Constitution

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For the record, as I have written in this column before, I am in favor of constitutional change. But it must be done properly.

I would like a shift to a federal and a bicameral parliamentary system which, consistent with federalism, would have a regional senate. The federal system, which in my view is essentially a form of regional governance, should allow entities like the Bangsamoro to exist without constitutional restraints. 

There must be an immediately executory anti-dynasty provision that is the broadest possible. A dual district and party-list system should be established to allow the development and maturity of political parties.

I also think that going federal should be a decision made by the provinces and cities that will form a region or state and that provinces and cities should be allowed to opt out of a federal region or state if they prefer so.

An important decision to be made in designing a federal system is how resources and revenue will be shared and allocated. It cannot be a simplistic formula that allows regions to retain most income. That would favor the wealthier regions and could economically depress the poorer regions. Decentralization would become a driver of further underdevelopment in those regions.

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Many of these elements are already in the PDP-Laban proposal and only need further consultation and refinement. The Handbook on Federalism, published by the Ateneo University Press, also discussed the implications of our choices in designing a federal system.

I would oppose any dilution of the bill of rights, for example to add the qualifier “responsible” to the great freedoms of speech and press. In fact, I support an expanded bill of rights that would also spell out the rights of OFWs and explicitly recognize environmental rights (which should include enumerating the rights of displaced persons and disaster survivors, as well as a recognition of the inherent rights of nature).

I hope to see also an expanded article also on social justice, as poverty intensified by inequity, is still the biggest scandal of this country. The political and economic elite of this country should be ashamed of themselves (that includes me) for allowing this state of our society to persist. The social justice article should put the state squarely in favor of workers, farmers, fisherfolk, indigenous peoples, urban poor, and vulnerable women, youth, and children, and include sections that would specifically outlaw labor-only contracting, land grabbing, and eviction of the poor. 

There must be constitutional provisions that would be unmistakably clear about abolishing the pork barrel and unrestricted presidential discretion over public funds so that the PDAF and DAP anomalies are not repeated. There should be sections that would enshrine the best practices of social accountability and inclusive development so a prosperous, just, and happy society is attained.

The independence of the judiciary, the Office of the Ombudsman, and the Independent Constitutional Commissions (which should include an upgraded Commission on Human Rights) should be strengthened. Safeguards to prevent the weaponization of impeachment, as in the case of former Chief Justice Renato Corona and now with Chief Justice Maria Lourdes Sereno, should be provided. Mandatory annual increases in their budgets should be provided for in the Constitution, an improvement over the current provision which only guarantees that there be no reduction in their budgets from the previous year.

Finally, practical clauses on petition, initiative and referendum should be provide. These would allow the people to directly participate in governance without the current restraints that make it almost impossible to do successfully. 

As to the mode of changing the Constitution, it is clear to me now that a constitutional convention with a combined elected (one per province and city) and appointive (25-50 by the President) members is the way forward.

Under the 1987 Constitution, a constitutional convention may be called by Congress by: 1) a vote of two-thirds of all its members; or, 2) a resolution, by a majority vote of all its members, to submit to the electorate the question of calling such a convention. Once assembled a constitutional convention, like Congress, possesses in all its plenitude the constituent powers. Its powers cannot be limited or restricted by the legislature. With this power, the Constitution is opened up for examination and amendment in its entirety. This mode was used to draft the Malolos Constitution of 1899, the 1935 and 1973 Constitutions. Con-con members are elected for the sole purpose of amending or revising the Constitution. If chosen well, they are likely to be competent, independent-minded, non-partisan and visionary. Sectors that do not have representation in Congress may be given opportunity to sit in the Con-con and to participate in the drafting of the new charter. This mode is less controversial and politicized. Conversely however, a Con-con is an expensive process relative to the others. It is more difficult to manage and the least divisive modality.  

In a Constituent assembly, the House of Representatives and the Senate constitute themselves to perform a non-legislative or super-legislative function that inherently belongs to the people, the repository of the sovereignty in a Republican State. Once both houses adopt the resolution or pass the bill, they become a constituent assembly that can start crafting the amendment to or revision of the Constitution. They can meet as one body or separately as they do with normal legislation. The proposals will then be subject to a vote by its members and are deemed approved upon a vote of three-fourths of all its members with each chamber voting separately. A plebiscite will then be held within the prescribed period. 

Constitutional amendments via constituent assembly happened under the 1935 Constitution during the presidencies of Manuel L. Quezon and Manuel Roxas. It is the most expedient and less expensive mode. The Joint Resolution that will create the constituent assembly can prescribe the limits of the agenda of amendments; hence, it is easier to manage. The members of the constituent assembly are elective officials whose constituents can hold them accountable especially in the next elections. Conversely, if the two houses voted jointly, the assembly might be dominated by members of Congress who have narrow or parochial interests. Moreover, considering its membership, it is fraught with conflict-of-interest issues because the representatives or senators may be tempted to propose changes to the Constitution which would benefit their political careers, like redistricting or lifting of term limits. 

The last but not the least mode is via people’s initiative. The use of this mode, however, is limited to amendments to the Constitution and cannot be utilized to revise the charter. Thus, a people’s initiative cannot be used to propose, for example a shift to a federal form of government since this shift is not a simple amendment. And because of the requirements the Supreme Court has imposed on its exercise, laid down in the case of Lambino vs. Comelec, the people’s initiative, however, is too unrealistic and too cumbersome for ordinary citizens and their organizations. 

Of the three modes, the constituent assembly will likely encounter a high level of distrust from the citizenry. A constitutional convention, notwithstanding its high financial cost, is generally more acceptable to ordinary citizens and more conducive for a circumspect constitutional drafting process. More than anything else, constitutional change, in whatever mode, ought to be an offshoot of the citizenry’s demand for and participation in good governance. 

We can change the Constitution for the better. Let’s do it right.

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