Monday, June 08, 2009

Toying with the Constitution

We, Filipinos, seem to love and hate our Constitution.

The Philippine Constitution has been rewritten seven times starting from the Biak-na-Bato Constitution to the present day 1987 Constitution. Each time, a significant event precipitated the change.

The Biak-na-Bato Constitution was inspired by the Filipino revolution and independence from Spain. Two years later, the Malolos Constitution was adopted to establish the first Philippine Republic with a strong government.

In 1935, U.S. President Franklin D. Roosevelt approved the Commonwealth Constitution, an instrument drawn by a constitutional convention presided by Senator Claro M. Recto. During the Japanese occupation of the Philippines, a provisional Constitution went into effect in 1943.

After the liberation from the Japanese, the 1935 Constitution was restored and revised for the ensuing republic until 1973 when President Ferdinand Marcos convened a constitutional convention to draw a new Constitution for his New Society and the foundation for authoritarian rule. When Marcos was ousted in 1986, the new government under President Corazon Aquino promulgated what is now known as the Freedom Constitution which restored the presidential form of government. The new Constitution took effect in 1987 and is now the subject of another rush to amend it in order to accommodate incumbent President Gloria Arroyo’s lust for power.

Last June 2, 2009, called by many as a “night of rape” and “ignominy,” allies of President Arroyo who control more than the majority of the members of Congress approved House Resolution 1109 creating a so-called constituent assembly to amend the Philippine Constitution. While the original intent of the proponents of this assembly is to amend the economic provisions of the Constitution, most critics say that HR 1109 would also pave the way for an amendment allowing Arroyo to stay in power beyond 2010.

Arroyo’s allies in the House of Representatives have declared their intention to convene a constituent assembly to amend the Constitution without the Senate when Congress reopens in July despite public protestations and outrage. According to Representative Mauricio Domogan, one of the authors of HR 1109, the assembly would proceed even if senators refused to cooperate and they would only stop if the Supreme Court rules that HR1109 is unconstitutional.

The 1987 Constitution of the Philippines provides three options for amending or revising the Constitution, namely, (1) by Congress, upon a vote of three-fourths of all its members, (2) by a constitutional convention, and (3) through initiative upon a petition of at least 12 per cent of the total number of registered voters.

A constitutional convention was assembled to frame the 1935 and 1973 Constitutions. In 2006, a people’s initiative was undertaken to overhaul the structure of government by changing the government from presidential to parliamentary and the form of the legislature from bicameral to unicameral. It had the required percentage of signatures of voters but the Supreme Court overruled the initiative on the following grounds: only amendments are the subject of an initiative to change the Constitution, not revisions, and Republic Act 6735, the enabling law passed by Congress, prohibits petitions containing more than one subject.

There has been no experience with regard to the other option of convening Congress as a constituent assembly to amend the Constitution. At most, the experience of the United States in amending its Constitution is probably very persuasive as a reference because both the Philippine and U.S. Constitutions are very much alike on the issue of the constitutional amendment process.

While the U.S. Constitution specifically refers to both houses of Congress, the Philippine Constitution only mentions the words “Congress” and “its members.” But it would be a folly to restrict the word “Congress” to the House of Representatives only because it is both common knowledge and practice to refer to the Senate and the House of Representatives as the Congress of the Philippines. In other words, amending the Constitution through Congress means both houses being able to propose amendments to the Constitution, and approval by Congress of proposed amendments by three-fourths of all its members also means all senators and House representatives voting separately.

Does the House of Representatives need to convene separately as a constituent assembly for the purpose of amending or revising the Constitution?

The present 1987 Constitution is silent on this. All it says is Congress may propose amendments or revisions of the Constitution by a vote of three-fourths of all its members. In other words, members of Congress may constitute themselves as an assembly for the purpose of amending or revising the Constitution. The 1935 and 1899 Constitutions were more explicit as to how to convene the members of the legislature in order to amend or revise the Constitution.

A constituent assembly was first mentioned in the Malolos Constitution of 1899 which provided for its convocation after the President of the Republic had dissolved the National Assembly. The 1935 Constitution spoke of a joint session assembled by a vote of three-fourths of the members of the Senate and House of Representatives voting separately. Amending or revising the Constitution is similar under both the 1973 and 1987 Constitutions except that each called its legislature by different names, National Assembly in the 1973 Constitution and Congress in 1987.

It is therefore instructional to look at the American experience in constitutional amendments. Considering that many provisions of the Philippine Constitution were patterned after that of the U.S. and also the historical fact that the Philippines was under American tutelage for more than 50 years, the U.S. experience would be a useful reference.

There are essentially two ways to amend the U.S. Constitution.

The first method is for a bill to pass both houses of Congress, by a two-thirds majority in each house. Once the billed has passed both houses, it goes on to the states’ legislatures for ratification. All 27 amendments to the U.S. Constitution have taken this route and been approved, six had been disapproved, and thousands of proposals had been discussed.

The other route is by application of the legislatures of two-thirds of the several States for a constitutional convention for proposing amendments, but this option has never been used.

Following the American experience, there is no need for the Philippine Congress to convene a constituent assembly for the purpose of amending or revising the Constitution. A proposed amendment may be initiated in either house and if approved by three-fourths of all its members voting separately, such amendment can then be referred to a plebiscite for ratification by a majority of votes.

Our own constitutional experience suggests that a constituent assembly refers to a National Assembly or Congress that can be dissolved to turn it into a body for proposing amendments to the Constitution as provided by the 1899 Malolos Constitution. But the legislative body under the Malolos Constitution was a unicameral one, unlike the present Congress which is similar to the structure of the U.S. Congress.

The three-fourth’s vote of each house voting separately to pass a proposed amendment was also envisaged by the 1935 and 1973 Constitutions, thus the requirement for each house to vote separately has a precedent. This calls for both houses to vote instead of one house voting alone despite its numerical superiority in membership.

There are thousands of proposed amendments to the U.S. Constitution that have been tabled and discussed in the U.S. Congress since 1787 but to date only 27 amendments have been successful. This indicates that constitutional amendments should not be taken very lightly, that they should go through debates no matter how long they take, through rigorous examinations and extensive public hearings. Because of some long- outstanding amendments, the U.S. Congress has also put a time limit, typically seven years, for the bill to be approved as an amendment.

The position of Gloria Arroyo’s allies that they can proceed to convene a constituent assembly without the Senate participating is definitely without merit. There is no need for a constituent assembly; the present Constitution is silent about it. But ignoring the Senate as a co-equal house in Congress for the purpose of amending the Constitution is a brazenly stupid mistake.

Amending or revising the Constitution in order to overhaul the structure of government is usually prompted by a major and critical social event such as a civil war, a war of independence against foreign invasion or colonial rule, or liberation from an oppressive or authoritarian regime. The 1987 Constitution was called the Freedom Constitution because it was drafted after the end of oppression under Ferdinand Marcos. Marcos might also be justified in drafting his own 1973 Constitution to embody the vision and ideals of his New Society. The 1935 Constitution was adopted to bridge the transition from U.S. colonial tutelage to Philippine independence in 1946. Autonomy from Spain spawned the Malolos Constitution in 1899.

What would justify amending or revising the present Constitution but to entrench Gloria Arroyo’s lust to remain in power and control of the government beyond 2010? This was obvious from the beginning of time when she supported Charter change after she assumed the presidency. Plus, the timing of the House Resolution to convene a constituent assembly, a year away from the 2010 elections, is suspect.

On the other hand, House Resolution 1109 could be a decoy to provoke the people to rally against it and cause public mayhem and breakdown of peace and order. Amending the current Constitution to further ensconce Gloria Arroyo in power could be a sure recipe for a civil war. This could be Gloria Arroyo’s cue to declare martial law.

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