[OPINION] Seems we never learned 1

[OPINION] Seems we never learned

Edmund Tayao

Posted at Feb 18 2023 09:48 PM | Updated as of Mar 02 2023 01:40 PM

Another attempt to revise the 1987 Constitution. Part I, Timing and Mode of Change.

It appears we have not learned much from substantive exchanges we have had several times before in considering revising the Constitution. 

With the revival of discussions on the subject, I am hearing the same arguments against. I am hearing the same arguments for other options other than revising the Constitution. The same reasons are being raised by those who do not favor any amendment to the Constitution, and the same cautionary points are being raised by those who would say they support revising the Constitution, except that they favor particular changes, if not approaches to changes, or even the most oxymoron of arguments, that the timing is not right.

Let's start with this most common of questions and or reservation, that it is not yet time, or that it is not timely to amend the constitution, that there are so many issues that we should be concerned with and therefore prioritize. There are also those who are more categorical and rather simplistic with their reservation of changing the constitution under the current President, being a Marcos. Perhaps the limitation is borne out of perspective, of the work that they have been doing all this time.

I have been involved in initiatives to change the constitution since the time of former Presidents Ramos, Erap and GMA, and the reservation has always been "not at this time." Not during the time of Ramos, not during the time of Erap and not during the time of GMA. Now again, here we are, hearing the same, not during the time of President Marcos.

What many do not realize is that if we will be tied with this reservation, I am afraid we will never be able to change our constitution. Of course, that would be preferred by some. This will be quite unfortunate however, as many of the issues we have been facing, especially development issues, are due largely to the kind of government that we have, to the limitations in choices of leaders, and especially to the lack of accountability in government. These are all issues of "mechanisms" that are all defined by the kind of political system, of the processes we have in choosing our leaders. As long as we continue with the current setup, we will be electing the same kind of leaders that some will likely not trust enough to change anything fundamental such as the constitution.

Then there are those who say that we actually have a good, even perfect constitution, that there are good provisions but have simply not been implemented as there is no legislation yet enacted to implement it. One supposed constitutionalist argued incessantly that all that Congress has to do is pass legislation to implement the "anti-political dynasty" provisions in the constitution and that should address political issues, that we have been electing the same people, that our choices are limited only to political families or dynasties. There are also those who argue that we have to enact laws to effectively implement the good "social justice" provisions in the constitution and it will then level the playing field in the economy, labor and other related issues.

What we don't realize or even perhaps would not want to consider is, however we raise our voices to complain about the non-passage of important, game changing legislation, it will never be passed. How many congresses have we had where proposals for an anti-political dynasty law have been just ignored? Until such time we change the rules of elections, representation and even executive-legislative dynamics, we will never have a legislature that will pass critical legislation. We have not been electing our leaders on the basis of what they have in mind to champion if elected right? Why are we expecting them to be suddenly inclined to pursue compelling legislation? I have written considerably in this regard, see here for example.

The point is, revising the constitution is a political decision, it is never a question of timing. Given the level and even the nature of partisanship in our politics, where allegiance to a political family or personality is paramount, whoever will be elected as President will not have the support of many, or the majority to pursue constitutional reforms, it will always be seen as self-serving. Meanwhile, the changes that we need can only be realized if we change the constitution, if we change the mechanism that chooses our leaders and have them accountable.

In case we have not given enough reflection, the constitution is called the fundamental law, because it is most fundamental, that all laws are based on it, that no law can be passed that is not consistent with it. That is why it is called a constitution in the first place; it is supposed to "constitute". It is also called the "charter" as essentially, it provides direction for the country, that it provides the aspirations of the people.

The importance of a constitution is therefore evident, yet we have not really given enough effort to have one that is really indisputably ours or one that is enacted under normal circumstances. The 1935 Constitution was enacted under the auspices of the United States, then our colonial master. There was good reason that the 1971 Constitutional Convention was convened, to finally have a constitution that is truly ours, but it will be superseded with the declaration of martial law and instead we'll have the 1973 Constitution. And now we have the 1987 Constitution, drafted not by a Convention but a Commission. That would have been alright, except that it was purely executive driven and even given a timetable to finish. Most importantly, it cannot be denied that it is a constitution that is enacted more as a response to martial law the country has just gone through then. The result emasculated the government, both the executive and the legislature.

There is then so much reason to proceed and change the constitution. Assuming there is agreement to its being necessary, we now have to settle the question of how, whether to go through the ideal process of a Constitutional Convention or convene Congress as a Constituent Assembly. There is a good reason why many would tend to consider a Constitutional Convention as it is most ideal. We will be electing delegates to the convention, a body that will be tasked to draft a new constitution. The question is, if we will be able to elect members to said body that is somehow different or unrelated from those who are in Congress. The answer of course is no. The election of delegates will likely be subject to the same conditions and or considerations as we elect any and all of our elected political leaders.

Some will not just accept that as an important consideration. After all, the convening of a convention will have to be subject to a congressional resolution convening it. There is then a way to put provisions in the resolution that will determine who will can be elected as a delegate. For example, someone suggested during a public hearing in Congress that a provision in the resolution calling for a convention prevents anyone related up to the 4th degree of consanguinity to anyone in congress. On the other hand, if the anti-political dynasty proposed legislations did not make it in congress before, what is the likelihood a provision consistent to it may be considered in a resolution convening a constitutional convention?

Going by all these, the only viable option it appears is the constituent assembly. Members of congress are elected after all, albeit that many are from the same names we have always been seeing in government and or congress for a long time. The equal opportunity that is supposedly ensured in the constitution simply cannot be relied on as the circumstances of elections as we have it in place today favor those who have the resources to run for office. We don't have real political parties to begin with. That would have made a significant difference, especially if it is the political party that will be responsible for raising campaign funds necessary for one's bid to be elected.

If then, say, charter change actually gets going, one option that may be considered is for a constitutional convention to be called, but the membership would still be those who are already elected in congress only that they will be joined by some members who will be appointed. This way, there is room for those who have already been identified as experts, or those renowned people who can contribute to the drafting of a good constitution. This is an option that was seriously considered by the 2018 Consultative Committee to Review the 1987 Constitution that drafted the Bayanihan Philippine Federal Constitution. It can be a different combination as long as having a way to have qualified personalities to be members is seriously considered.

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