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 amongst 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 last year 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, 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 “scepticism is rooted in the Marcos era where the dictator used constitutional change to duck term limits.”
Political opponents of President 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.”
And yet another plausible reason why most Filipinos are averse to charter change is found in the very same Pulse Asia survey. One key result reveals that 75% of respondents said they had little or “almost none or no knowledge at all” of the 1987 Constitution.
In the context of constitutional reform, this finding poses a huge problem. How can the drafting process be truly robust and inclusive when there is a glaring disconnect between majority of Filipinos and the national charter?
Clearly, an indispensable precondition of constitutional reform in the Philippines is a widespread and substantial public consultation process. And given the reality that 3 out of 4 Filipinos know very little about the current charter, a key element of this process 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 first half of 2019 can be used for the nationwide constitutional education phase. The barangay assembly position papers can be formally endorsed during the State of the Nation Address. Congress can thereafter focus on the revision process, as guided by the barangay assembly submissions, until the end of the year.
(MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is the author of the book, Rethinking the Bangsamoro Perspective. He researches on current issues in state-building, decentralization and constitutionalism)