Michael Henry Yusingco
Ateneo Policy Centre, Quezon City
The Philippines has had three constitutions. The first one was in 1935 which was part of the preparatory process before the granting of independence by the United States in July 1946. The second one was in 1973 which provided the colour of legitimacy to President Ferdinand Marcos’ 14-year dictatorial regime. The third one took effect in 1987 restoring a republican democratic system in the country.
The 1987 Constitution is considered one of the most enduring constitutions in the world because it has stood for three decades 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. Hence, it is only reasonable to expect that Filipinos would welcome any chance at diagnosing pathologies in the current charter. And yet, one of the respected polling firms in the Philippines, Pulse Asia Research, recently released results of a survey showing that 64% of respondents are not in favour of amending the 1987 Constitution.
It must be noted that President Rodrigo Duterte assumed office in July 2016 with the commitment to shepherd the transition of the Philippines to a federal form of government, an undertaking that requires a complete overhaul of the country’s constitution.
Accordingly, President Duterte issued in December 2016 Executive Order No. 10 to organize a Consultative Committee on constitutional reform with the mandate to “study, conduct consultations, and review the provisions of the 1987 Constitution including but not limited to the provisions on the structure and powers of the government, local governance, and economic policies.” However, this body has only recently commenced its work because members were only named last January.
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 “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.
There had been three attempts using the last method but all failed. According to the Philippine Supreme Court, to be able to use this mode there must be an implementing law which Congress has yet to pass. Hence, this option is presently not available.
Duterte and his allies in Congress favour 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.
Furthermore, those who push for the constitutional convention mode do so in 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.
Expectedly, Duterte and his allies in the legislature oppose this option, highlighting the need to complete the revision process by 2019. Holding an election for delegates to the constitutional convention will not only be very expensive, but it will also delay their timetable.
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. But this issue is far from settled because the Speaker of the House of Representatives, Pantaleon Alvarez, still insists that the House of Representatives and the Senate must vote as one body should it convene as a constituent assembly.
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 question 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 [Charter change] 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?
How can a full and thoughtful community participation in public debates be guaranteed, for instance on the matter of what mode of amendment to adopt or on how should Congress vote acting as a constituent assembly, when 3 out of 4 Filipinos have little or "almost none or no knowledge at all" of the 1987 Constitution?
Promoters of charter change have argued however that the 16 million votes garnered by President Duterte is enough proof that Filipinos want charter change because they approve of his federalism agenda. This is utterly unconvincing. For sure, not all of those who voted for him are federalism fans. And not all of those who did not vote for him, and they number about 44 million, are against federalization.
What the Pulse Asia survey results cited here really show is the unreadiness of Filipinos to take such a profound political exercise. Correspondingly, it behoves the Consultative Committee to devote more time and effort in enlightening the public about constitutional reform. Under the present circumstances, this is the best chance for Filipinos to know the 1987 Constitution more intimately.
Only by undergoing a genuine and participatory national dialogue will Filipinos attain a level of consciousness where they can properly decide whether to change the charter or not. And anything short of this will only reinforce the anxiety and mistrust fuelling their resistance to constitutional reform.
Michael Henry Yusingco is a legislative and policy consultant and a senior research fellow at the Ateneo Policy Centre in Quezon City and at the Institute for Autonomy and Governance in Cotabato City, Maguindanao, Philippines.