Sunday, January 16, 2011

Finally a new Constitution in 2011? by Fr. Joaquin Bernas

WILL WE have a new Constitution before 2011 ends?

But before that, let me just again say that I have never claimed that the 1987 Constitution is perfect. It is the Constitution, warts and all, which the Filipino people overwhelmingly ratified after we emerged from the dark era of martial rule. But no matter what the circumstances of its birth are, no constitution is ever perfect. A constitution, although more enduring than statutes, is always a work in progress. Even the US Constitution, the oldest in the world, is a work in progress. Ours is, and one of these days, it will have to yield to change. Is 2011 the year?

I don’t think it matters constitutionally that the President does not consider constitutional change a matter of urgency. If you look at the text of the Constitution, you will see that the President is not given a role in the amendatory process. He will have a decisive role only if Congress is willing supinely to follow his dictation. Gloria Macapagal-Arroyo was for constitutional change, but her wanting it brought her nowhere. Now she is where the decision to change or not to change matters.

Having said that, let us first look at what has happened to attempts at constitutional change so far. Next month the Constitution will complete its 24th year. Through all these years it has remained untouched. It has lasted unchanged longer than either the 1935 Constitution or the 1973 Constitution. The 1935 Constitution underwent change almost immediately after its birth, first, by giving suffrage to women, and a little later by moving from a unicameral National Assembly to a bicameral Congress. As to the 1973 Constitution, it was not what the Constitutional Convention of 1971-1972 had intended and, during its brief lifetime, it underwent several major changes.

If the 1987 Constitution has resisted change to this date, it is not because it is a perfect Constitution nor is it for want of attempts to change it. Almost every year attempts at constitutional change have been made. None has succeeded.

In my view, one major obstacle to attempts to revise the 1987 Constitution is structural. It has a built-in unintended obstacle to change. And I do not know how this can be overcome this year.

In many respects the 1987 Constitution consists of significant borrowings from the 1935 Constitution. Unfortunately, however, the provision on the amendatory process is a carbon copy of the provision in the 1973 Constitution. Year after year since 1987 this has been the major obstacle to change. Why so?

The text says: “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. . . . 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.”

The provision is one formulated for a unicameral legislative body but it is now meant to work for a bicameral Congress. This was not a tactical product designed by an evil genius. It is merely the result of oversight. But the oversight has spawned major problems.

First, must Senate and House come together in joint session before they can do anything that can lead to charter change? The 1935 Constitution was very clear on this question: Congress could not begin to work on constitutional change unless they first came together in joint session. The 1987 Constitution is non-committal.

Second, since the text of the Constitution is not clear about requiring a joint session, can Congress work on constitutional change analogously to the way it works on ordinary legislation, that is where they are and as they are? I have always maintained that Congress can, but this is by no means a settled matter. There are those who believe that the importance of Charter change demands a joint session.

Third, should Congress decide to come together in joint session, must Senate and House vote separately or may they vote jointly? The 1935 Constitution was very clear on the need for separate voting; the present Constitution is silent about this. But I am sure that the Senate will not agree to a joint voting where their number can be buried in an avalanche of House votes, an avalanche of votes which can mean the abolition of the Senate! How will this issue be settled? Howsoever the matter might be settled by agreement of the majority of both houses, someone in the minority will run to the Supreme Court to challenge the decision.

What about a constitutional convention? But the business of calling a constitutional convention is fraught with the same problems. Should Congress choose to call a constitutional convention, must the two houses be in joint session? And if in joint session, should they vote separately?

Briefly, constitutional change in 2011 or later can happen only if the members of Congress can agree to work in harmony and if the Supreme Court will not throw a monkey wrench on how Congress decides to do it. Can the members of Congress rise above self-interest and work together harmoniously? Or are we waiting for an extra-constitutional change?


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