A good Constitution must allow for some elbow room to be able to adapt to the changing socio-political landscape
Here are our politicians again – attempting to change the Constitution.
There were failed attempts during the Ramos, Macapagal-Arroyo, and Duterte administrations to change the 1987 Constitution.
Because the Senate was uncooperative, the first two attempts tried the initiative route provided in Article XVII Constitution.
Ironically, those two attempts resulted in two Supreme Court decisions that made the requirements for petition and initiative more stringent.
In any case, not even one of these attempts reached the referendum stage.
I have written many times that 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 impacts of our governance options, and without following the right procedures will be disastrous for the country.
In governance and policy making, as it is in medicine, the first rule must be to do no harm.
In 2012, I co-authored a book titled “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 have ended the way they did – 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 and 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.
The best mode of changing the Constitution 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.
Second, there must be also be no conflict of interest in drafting a new Constitution. Politicians and political dynasties must not dominate in the process as the result could be contrary to national interest.
Third, 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.
Circumventing the “voting separately” requirement even through a Constitutional amendment by initiative, sidelines the Senate and is a perversion.
As a Constitutional law professor, I believe a Constitution must be rigid enough not to be susceptible to the whims and passions of the times; nor too fickle that it can be dropped like hot potato whenever its provisions run in cross-purposes with the political and economic agenda of the powers-that-be.
At the other end of the spectrum, however, a good Constitution must allow for some elbow room to be able to adapt to the changing socio-political landscape.
It must have a reasonable measure of flexibility to keep abreast with the conditions of a country in constant flux.
Railroading of a new Constitution is counterproductive.
When political fortunes change, as it surely will, the future leaders and the people will quickly revoke such a Charter.
An illegitimate onstitutional process is the recipe of disunity, of instability. Lets avoid that.
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