Battle of the brains

Sen. Robinhood Padilla wants the Constitution amended, but not in the manner proposed by the House of Representatives. The House, recognizing what polls have been suggesting for decades now, wants to pursue amendments by means of an elected constitutional convention. For his part, what Padilla wants is for Congress to propose amendments for the people to vote on in a plebiscite. He wants Congress to do it in its true sense of being the House and Senate in Congress assembled but not, as the current Constitution confusingly provides for, voting jointly. We have seen in the case of martial law, the provisions of which were equally badly written, that when those provisions were applied, it resulted in the much bigger House and much smaller Senate voting together, which basically cancels out the institutional stand of the Senate, something a bicameral Congress is not supposed to do.

For decades, the Senate has resisted proposals to amend the Constitution because of how it is written, which would essentially make it commit suicide. The moment it agrees to consider amendments, it would be made the appendix of a constituent assembly, where the House’s numbers would make whatever the Senate felt irrelevant to the outcome.

This is not a paranoid fear, considering that in most of its proposals, the House has been motivated by the dream of becoming a unicameral parliament, which would allow it to select a chief executive from within its own ranks, freed of the irritation and expense of public opinion and its mechanism for providing a mandate through national elections. It has been easy for members of the House, both imprisoned, yet liberated, by their relative national anonymity as members of the herd, to paint senators as self-interested; but self-preservation is the first rule not just of individuals but institutions, and the Senate is an institution that exists, however imperfectly (but effectively), to maintain a national perspective in our baronial short-sighted political culture.

Senators, who are made and broken by national public opinion, knew how to leverage their national platforms into opposing Charter change; the House and the Palace time and again were foiled by public opinion and the equally important question of what the Supreme Court would do if asked to rule on a bicameral Congress having a provision for amendments written for a unicameral national assembly. In the past, with memories still vivid of the Supreme Court’s surrender to Marcos, it was expected to vote in favor of the spirit of the Constitution; but in recent years, as the Court itself changed, senators frankly feared the Supreme Court voting to help the House extinguish the Senate. Former chief justice Reynato Puno has helped broach the formerly unthinkable by suggesting, if asked to rule, the Supremes could do a 1973 and dodge the question by stating it’s a political one outside their jurisdiction.

This time around, both the House, in proposing an elected convention, and the Senate (at least, Padilla who chairs the committee on constitutional amendments), by proposing that the Senate and the House vote separately, seem inclined to avoid the landmines that blew up previous Charter change efforts, but they are still not seeing eye to eye on the method to pursue. Where they both seem to agree is in publicly stating they intend to stay clear of an additional landmine. In the past, the public has thumbed down every effort to amend the Constitution the moment it presents a possibility of depriving the electorate of the chance to directly elect the chief executive. So both the House leadership and Padilla state they are uninterested in changing the so-called political provisions of the Constitution: only the economic provisions, they both claim, are on the table. Here they are probably aware of the one economic provision public opinion has consistently opposed: opening up land ownership to foreigners; all other provisions seem possible, as far as public opinion is concerned.

Last year, I gave a talk on my belief that our present Fifth Republic has already fallen, in that it is now a zombie republic just going through the motions of existing, with all its 1987-era aspirations gutted by both its friends and foes. The only question that remains is when its death certificate will be formalized and a new system formally put in place. In response to that talk, former president Gloria Macapagal Arroyo sent word that I’d been mistaken in attributing the push for parliamentary government to her; according to the intermediary who transmitted her message, she’d only pursued it because then Speaker Jose de Venecia Jr. wanted it. Whether unicameralism, parliamentarism, or federalism, while each idea has its passionate proponents, a critical mass never seems to have been achieved for any or all of these ideas. Instead, as both the House and Senate proponents of amendments seem to be telling us today, the only real muscle behind Charter change today isn’t political—it’s economic. This tells us the political class as a whole is fairly comfortable with what we have. This is not to say that individual politicians don’t have their pet theories; only that they are pragmatists and understand what is possible.

Meanwhile, from the peanut gallery come two contending voices, which are converging on a surprisingly antidemocratic consensus. Contending because they represent two increasingly elderly traditions. Christian Monsod represents the dying embers of the 1987 Constitutional Commission and the era in which it operated, and Puno belongs to the creative approach to the law that was formulated and refined by Estelito Mendoza, under the patronage of Ferdinand E. Marcos Sr. (an approach that has helped neutralize many of the aspirations of the framers of the current Charter). They are both, however, united in their contempt of our current crop of lawmakers and the political families most of them belong to. Where they differ is: Monsod would prefer no changes, even to economic provisions, while Puno wants economic changes but wants them proposed by people like himself. Neither opinion is likely to endear itself to both lawmakers and voters.

Email: [email protected]; Twitter: @mlq3