6 things you should know about Constitutional change

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While it is not apparent — yet — a change in the Constitution will drastically change Filipinos’ lives, and such change will be real, practical, and visible, embracing everything we do as part of society. Photo by JL JAVIER

Manila (CNN Philippines Life) — How important is the Constitution for an ordinary person?

If you’re enjoying your freedom to post on Facebook, that’s protected by the freedom of expression clause, found in Art. III or the Bill of Rights in the 1987 Philippine Constitution. If you find Facebook data sharing too abusive, your right to privacy is also protected by Art. III.

If a government official is corrupt, Art. XI guarantees the accountability of public officers. Our rules on land ownership are guided by Art. XII on national economy and patrimony. Your local government units — provinces, cities, municipalities, and barangays — exist because of Art. X on local government. Among many others.

In short, the Constitution is the wellspring of laws and practical rules that govern our everyday lives. All laws and judicial decisions must conform to it. But a Constitution cannot exist unless promulgated by a sovereign people: in the case of the 1987 Philippine Constitution, “the sovereign Filipino people,” exercising this power via their elected representatives.

Today, there’s a movement to change the Constitution by shifting to a federal form of government (called a revision, as will be discussed below). It’s the latest in several previous efforts to overhaul the Constitution, which have all failed before because of problems interpreting the process by which change can be made, which is also dictated by the Constitution.

Whatever changes may be proposed or discussed, however, a Constitution is only as effective as the people and their culture make it to be. “Our society’s success or failure depends not so much on the system as on the people running the system,” said Fr. Joaquin Bernas, SJ, a revered Constitutionalist and law professor, in a memorial lecture in 2006. “It is easy to write a Constitution; it is more difficult to make a Constitution work.”

All the same, it’s important to know a few basics about the process of changing the Constitution, since we, as “the sovereign Filipino people,” should participate in it. While it is not apparent — yet — a change in the Constitution will drastically change Filipinos’ lives, and such change will be real, practical, and visible, embracing everything we do as part of society.

The information below is culled from Fr. Bernas’ seminal book on the Constitution: “The 1987 Constitution of the Republic of the Philippines: A Commentary,” published in 2009. The book, used as a textbook for first year law students, is a recipient of the Supreme Court Centenary Book Award.

Q: What Constitution are we changing?

A: The 1987 Constitution, drafted by a Constitutional Commission formed by former president Corazon Aquino after the 1986 EDSA revolution. This is the Constitution in effect today. Aquino had a choice to rule under the 1973 Constitution after she was installed as president, but chose to abrogate the very same document that helped facilitate the declaration of martial law.

In effect, the 1987 Constitution — evident in its provisions limiting the declaration of martial law, among others — is a direct response against Marcosian dictatorship and tyranny.

Under the 1987 Constitution, government is presidential, and is divided into three branches: executive (led by the president), legislative (comprised of Congress), and judiciary (led by the Supreme Court). Congress is bicameral, meaning there are two Houses involved in passing laws: the Senate and House of Representatives.

Art. II, Sec. 1 of the Constitution assigns the Philippines as a “democratic and republican state.” The word democratic, consistent to the document’s roots, is a “monument to ‘people power’ which re-won democracy in EDSA,” writes Bernas. “Republican” refers to a republic, or a form of government which derives power from the sovereignty of the people.

There have been calls for Constitutional change (or charter change, more known as ‘cha-cha’) as early as Fidel Ramos’ administration, which succeeded Aquino’s. Since then, lawyers, politicians, economists, and academics have criticized it for the following: its weak provisions on party systems, absence of a definite prohibition on political dynasties, restrictive foreign ownership, and lack of efficiency among branches of government, among many others.

The call right now is to shift the form of government to a federal government, one where power in the national government is shared with smaller, local governments, with local governments granted more autonomy.

Q: What do changes to the Constitution look like?

A: Proposals may come in the form of (a) amendments or (b) revision. The two significantly differ from each other.

Amendment is “an alteration of one or few specific and separable provisions,” thus entailing a Constitutional change that does not affect the whole document. An example would be a provision added to allow same-sex marriage in the Philippines or to clearly prohibit discrimination against the LGBTQIA+ and other minorities.

Revision, on the other hand, may involve rewriting the Constitution anew, or major changes that cannot be implemented without affecting the provisions of the Constitution as a whole. The most relevant example is the shift to another type of government, such as federal.

Q: Where does the power to change the 1987 Constitution come from?

A: The sovereign Filipino people. The Constitution provides the procedure and limitations for changing it, but this is a power conferred to it by the people, consistent with the preamble of the Constitution: “We, the sovereign Filipino people … do ordain and promulgate this Constitution.”

In short, the president, for example, cannot impose changes to the Constitution. Neither can a consultative committee created by the president, though they may suggest changes to Congress. Congress or a constitutional convention can only act to propose changes to the Constitution because we, the people, empower them to do so. The people also have the power to propose amendments directly (but not revisions).

In any case, changes to the Constitution are only valid and effective if ratified or approved by the people in accordance with Art. XVII, Sec. 4. No new Constitution can be had without a plebiscite held for this specific purpose.

However, this ‘constitutional sovereignty’ — a term used to define the meaning of ‘sovereignty of the people’ within the Constitution — does not mean the people cannot exercise ‘popular sovereignty,’ as when they go outside what is allowed by the Constitution to change it, “in a totally new expression of sovereign will,” writes Bernas.

The most significant case regarding the validity of the people’s ratification of the Constitution (in this case, the 1973 Constitution) is Javellana v. Executive Secretary (or the Ratification Cases). The lengthy case is worth a read and discussion on its own. Petitioners questioned, based on the requirements of the 1935 Constitution, if the amendments for the 1973 Constitution have been ‘submitted’ to the people for ratification at an ‘election,’ and if the amendments were approved by a ‘majority of the votes cast’ in the election.

Changes to the Constitution are only valid and effective if ratified or approved by the people.

Here, a Supreme Court mostly beholden to Marcos voted to dismiss the petition, thus upholding the 1973 Constitution, despite strong arguments (even among themselves) that no valid ‘election’ or plebiscite was held.

Justices Macalintal and Castro, for example (who voted to dismiss) observed voting was done not via elections as supervised by the Comelec, but via citizen’s assemblies open to people from the age of 15, where votes were cast not by secret ballot but by a show of hands, without any set of rules for tabulating and reporting them.

However, Macalintal and Castro (along with another Justice, Justice Barredo) deemed these observations irrelevant — for them the pivotal question was whether the new Constitution was in effect via popular acquiescence, writes Bernas. And this was a political question which was outside of the court’s ability to answer. Thus the vote to dismiss.

The last sentence of the majority decision, penned by then Chief Justice Concepcion, is telling. “This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.”

The 1973 Constitution saw the implementation of martial law, and afterward, the 1986 People Power revolution, which led to its abolition via the provisional ‘freedom’ Constitution of 1986, then the ratification of the 1987 Constitution.

Q: Who initiates changes in the Constitution?

A: Congress. The Congress may either convene as a constituent assembly (‘con-ass’) or call for a separate constitutional convention (‘con-con’) to propose the amendment or revision of the Constitution.

If Congress chooses to convene as a constituent assembly, the present members of the Senate and House will draft and deliberate on the proposed changes (on top of their usual legislative responsibilities). If Congress chooses to call for a separate constitutional convention, a special election will be held to elect delegates for the sole purpose of drafting and proposing changes to the Constitution.

The people may also propose changes directly (but only amendments, and not revision) by initiative — upon a petition of at least 12 percent of the total number of registered voters, with each legislative district represented by at least three percent of the registered voters therein.

However, initiative may only be done upon Congress’ enactment of a valid implementing law, which does not exist yet. In Santiago v. Comelec, the Supreme Court declared the process in RA 6735, which was supposed to be the law on initiative, to be “incomplete, inadequate, and wanting on essential terms and conditions.”

So no movement for changing the Constitution may move forward without the imprimatur of Congress. The draft proposal for a federal constitution, for example, made by a 22-member consultative committee, will have to be forwarded to Congress, to be subjected to the whole gamut of processes in making changes to the Constitution.

Q: Who will draft and discuss the proposed changes?

A: Three possible entities: (a) Congress, (b) specially elected delegates called a ‘constitutional convention,’ or (c) the people.

In the case of amendment, there are three entities that may draft the proposed changes:

Congress (acting as a constituent assembly)

A constitutional convention (comprising of delegates elected for the specific purpose of convening to draft proposals for the Constitution)

The people, via initiative, as discussed above.

In the case of revision, only Congress or a constitutional convention may propose changes. The framers of the 1987 Constitution deemed it unwieldy or practically impossible for the whole electorate to propose an overhaul of the Constitution.

Q: Is there a limit to what we can change from the 1987 Constitution?

A: Bernas, citing Planas v. Comelec, states one possible limitation: any proposal must not contravene jus cogens norms, or norms accepted and recognized by an international community of States, from which no derogation is allowed and which can be modified only by subsequent norms of general international law of the same character.

Jus cogens norms include the prohibition of the use of force between states, the prohibition of slavery, racial discrimination, torture and genocide, and the peoples’ right to self-determination.