Charter change

Once more Charter change is being discussed and even favored. Even President Benigno Aquino III, who initially sounded as if he had definitively closed the door on Charter change, is now open to it. This is very significant because of his powerful influence on Congress. Charter change cannot take place without the blessing of Congress.

For the moment, the only fundamental change that is being repeatedly mentioned is the liberalizing of the constitutional policy on natural resources. But there are quite a number of potential topics that can explode. The final version of the Bangsamoro Law might also require constitutional change, but we do not yet know what this law will look like. I also hear exasperated remarks about how the party-list system is working badly, or even worse.

The matter of what method to use for achieving change is now at the forefront of discussions. Let us review them because the outcome can depend very much on who will formulate the proposed changes.

The constitutional text on the subject tells us who can do the job:

Section 1. 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; or

(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

From this it is clear that there are three agents that can propose constitutional change: Congress, a constitutional convention, the people. Central to all of this is Congress because not only may it propose amendments; also, Congress alone can activate the other agents. Incidentally, notice that President Aquino is not one of the agents. (But President Ferdinand Marcos did propose amendments. That is now history.)

No one seems to be thinking of having a constitutional convention do the job now. As for amendments proposed directly by the people in a system of initiative and referendum, we tried it a number of times, but it never succeeded. We tried it illegitimately since there is as yet no law implementing the system. And I don’t think it will ever work. Nor do I see or even suspect that President Aquino will attempt to propose changes. We are therefore left with Congress. How will Congress do it?

It will be noticed that the Constitution does not dictate how Congress should do it, except to require that the outcome be approved by three-fourths of all the members. This means that aside from the requirement of a three-fourths vote, Congress is free to decide how it will go about the task. What are the options for Congress?

First, the two houses of Congress might come together in joint session for the purpose of proposing amendments. How they are to organize themselves and by what majority they are to decide—simple majority, two-thirds majority, three-fourths majority, voting either jointly or separately—all these are for Congress to decide.

Second, both houses might decide to do it the way they pass ordinary legislation—that is, as they are where they are but voting separately by a three-fourths majority, and only coming together, the way they do in ordinary legislation, to reconcile differences.

Several years ago I proposed this second method and theoretically it was accepted by members of Congress, but it was never acted

upon. I am informed that at least the House of Representatives is considering using this method.  But does the Constitution allow it?

My usual answer to such a question is: If it is not prohibited, then, whether stupid or wise, it is allowed. In this case, I believe it is wise. How so?

For a number of reasons. First, the Constitution says that Congress may propose amendments but leaves much of the details of how to do it to the wisdom of the illustrious members of Congress. Second, it is wise because, among others, it will allow a focused debate and avoid rambling discussions. It will also allow Congress to prioritize urgent matters and have them approved in a plebiscite earlier and give its members the satisfaction of having something to show to the people they serve.

The current Constitution was drafted and ratified in 1986-1987 in the wake of the People Power Revolution. All these years it has remained virginal. It has been praised but also criticized for various reasons, among them for being drafted by 48 people handpicked by President Cory Aquino.  Changes have been proposed from time to time but none has ever reached the plebiscite stage. Will change be achieved during the presidency of President Cory’s son?