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Can’t leave charter change to politicians

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By Michael Henry Ll. Yusingco

THE 1987 CONSTITUTION is considered one of the most enduring constitutions in the world because it has stood for almost 32 years without any amendment. This is an odd quality considering that most constitutional scholars will agree that a constitution is never infallible or immortal even as they continue to debate among themselves the ideal lifespan of a nation-state’s charter.

But none of these experts will ever deny that pathologies in a constitution can emerge during its reign. These pertain to provisions in the constitutional text itself that may have been designed with good intentions but have eventually become debilitating to the political system it purports to govern. The Philippine constitution is no exception.

And yet, one of the respected polling firms in the Philippines, Pulse Asia Research, released in 2018 results of a survey showing that 64% of respondents are not in favor of amending the 1987 Constitution.

So what could be driving this resistance to charter reform? One reason could be that this move has always been viewed as an underhanded scheme to extend the term of a sitting president. According to Professor Dante Gatmaytan of the University of the Philippines College of Law, this “skepticism is rooted in the Marcos era where the dictator used constitutional change to duck term limits.”

Political opponents of President Rodrigo Duterte claim that he could not be trusted with his promise not to run again for president under a new charter. Senator Leila De Lima, a staunch critic of Duterte and currently detained on drug charges, adds that it is difficult to rely on an administration that has already shown its “susceptibility for abusing power, for allowing impunity to reign, and for lying repeatedly to the public.”




Yet another possible reason why Filipinos are wary of charter reform is the lack of clarity on how to go about it. The 1987 Constitution provides three modes of constitutional amendment: 1) by Congress as a constituent assembly; 2) by a constitutional convention; and 3) by people’s initiative. In all three instances, any revision to the national charter shall only be valid when approved by the electorate in a plebiscite.

Duterte and his allies in Congress favor the constituent assembly mode because they see it as the practical choice. However, his critics counter that given the gravity of this political exercise for all Filipinos, the tab for it should not matter at all.

Moreover, those who push for the constitutional convention mode do so on the belief that such a body will be less beholden to Duterte as the current Congress seems to be. The memory of then-president Ferdinand Marcos using his martial law powers to railroad the enactment of the 1973 Constitution, which then facilitated his 14-year dictatorship, is still very much fresh in their minds.

To make matters even more volatile, the 1987 Constitution provides that any “amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members.” The phrase “of all its members” has raised the question of whether Congress acting as a constituent assembly, meaning the Senate and the House of Representatives, should vote separately or jointly.

The prevailing view is that these chambers of Congress should vote separately. The surviving members of the 1986 Constitutional Commission are unanimous in advocating this view. Former members of the Supreme Court, legal scholars, and, understandably, all incumbent senators insist that the voting must not be done jointly.

The possibility of charter reform via a constituent assembly brings forth another possible reason why Filipinos are still hesitant. And it is the palpable conflict of interest afflicting those pushing for this mode. Indeed, it is quite reasonable to ask how Filipinos can rely on lawmakers to institute the necessary reforms that could impact their hold on political power?

Ironically, a member of the House of Representatives said: “If the ones who will discuss Cha-cha are just the House and Senate leaders, then many would view this as suspect at the very least, even dangerous, and at worst, self-serving.”

However, there is an obstacle to charter change that is more fundamental than the views of those who oppose it: The fact that the same Pulse Asia survey revealed that 75% of respondents said they had little or “almost none or no knowledge at all” of the 1987 Constitution.

Therefore, an indispensable requirement of constitutional reform in the Philippines, if it eventually pushes through, must be a back-to-basics education on the 1987 Constitution.

For this particular approach, the President can commission law schools to assume the lead role. This is certainly a daunting imposition but warranted nonetheless under the Volunteer Act of 2007.

The education sessions can be undertaken via the barangay assembly apparatus. Note that by statutory mandate the barangay is also a “forum wherein the collective views of the people may be expressed, crystallized and considered.”

Ostensibly, the detailed mechanics of the education sessions themselves shall be the responsibility of each law school involved. But the core syllabus must cover two stages. The first one is a remedial class reviewing two basic components of the constitution: 1) Responsibilities of each branch of government and the constitutional offices; and 2) Rights and obligations of citizens.

The second stage is an open forum to be guided by these questions: “1) Is there a need to amend or revise the Constitution? Why or why not? 2) If so, what parts of the Constitution should be amended or revised? Why?”

At the end of the sessions, each barangay assembly must produce a position paper answering these questions which shall then be formally endorsed to Congress to be utilized as resource materials.

The fact is Filipinos cannot simply leave constitutional reform in the hands of politicians. Indeed, the infamous Resolution of Both Houses No. 15 passed recently by the House of Representatives is a warning that cannot be ignored. Dynastic politicians will not hesitate to hijack charter change to perpetuate themselves in their positions of power. And the only way to keep this mob in check is for Filipinos to be actively and intelligently engaged every step of the way.

 

Michael Henry Ll. Yusingco is a law lecturer, legislative and policy consultant, and Senior Research Fellow at the Ateneo Policy Center of the Ateneo School of Government.

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