Long road ahead for Cha-cha

MANILA, Philippines — The recent efforts to introduce some amendments to the 1987 Philippine Constitution have sparked renewed public interest in the topic. And for good reason. These efforts, which unsurprisingly have the support of the allies of President Duterte in both chambers of the legislature, have the potential to single-handedly change the country’s political and economic landscape, assuming they can rally enough support from our lawmakers.

To formally begin the process of changing the Constitution, our legislators must first decide between two options: amendment or revision.

According to the Supreme Court in Lambino v. Comelec, an amendment is “a change that adds, reduces or deletes without altering the basic principles involved… [and] affects only the specific provision being amended,” while a revision “alters the substantial entirety of the Constitution, as when the change affects substantial provisions of the Constitution.”

Currently, there are several resolutions filed in both chambers of the legislature in support of Charter change (Cha-cha). The Resolution of Both Houses No. 2 filed in the Senate last year by Senators Francis Tolentino and Ronald dela Rosa, and the “mother resolution” authored by the current Speaker Lord Allan Velasco, which he filed in the House of Representatives in 2019, both spell out in clear terms that they are only seeking to introduce “amendments” to the Constitution.

The resolutions also identified the manner by which the constitutional amendments will be introduced—through a constituent assembly (Con-ass), which may be called by the members of both houses of Congress. Once constituted as such, a vote of three-fourths of all its members is sufficient to approve a proposed constitutional amendment.

A constituent assembly, however, is not the only way to introduce amendments. The Constitution mentions two others: via constitutional convention (Con-con), which may be called into existence by a vote of two-thirds of all members of Congress or the electorate, in a referendum called for by a majority of all members of Congress; or through a people’s initiative, which requires a petition of at least 12 percent of the total number of registered voters, and where every legislative district must be represented by at least 3 percent of the registered voters therein.

Any amendment adopted through any of these three modes should then be ratified by a majority of the votes cast in a plebiscite that must be held within 60 to 90 days following the approval of the amendments.

Voting: Jointly or separately?

Selecting Con-ass as the way by which constitutional amendments will be introduced in Congress is just the start of what would be an arduous task for their proponents. Right out the gate is the legal question: Should the two chambers vote jointly or separately?

The problem is that the Constitution is silent on whether the members of Congress, sitting as a Con-ass, should vote jointly or separately.

The senators obviously want to push for separate voting as the alternative would diminish their power by being severely outnumbered by the members of the House. Differing views, on the other hand, have been heard from members of the House.

In the Jan. 13, 2021, hearing of the House committee on constitutional amendments, Deputy Speaker Rodante Marcoleta suggested that joint voting should be pursued because it is more practical. (“Mas gusto ko joint. Mas madali ’yun eh. Halimbawa, nagawa na natin ang kailangan gawin dito, tapos na tayo bumoto na tayo, nakuha natin ang 3/4 pero pagdating sa kabila, ang nakuha nila 1/4 ng votes, ’di wala rin tayong nagawa.”)

This suggestion, however, was immediately shot down by committee chair Alfredo Garbin Jr. and vice chair Lorenz Defensor, who hinged their positions on respect for the Senate and the country’s democratic processes.

This controversy has yet to be settled and will surely reach the Supreme Court when push comes to shove.

House version: ‘Restrictive’ economic provisions

The resolution filed in the House provides that the changes sought to be introduced are limited to the economic provisions of the Constitution only.

Essentially, lawmakers are seeking to allow more foreign direct investments (FDI) to enter the Philippines by changing the provisions of the Constitution to enable foreigners to own some of the country’s natural resources, agricultural lands, public utilities, educational institutions, mass media and advertising firms.

“Restriction on the foreign ownership is considered to be one of the reasons why unemployment rate and FDI have not improved,” said House Deputy Speaker Wes Gatchalian. “If we do not do anything about it, we will continue to lag behind and be overtaken by our neighbors.”

This opinion was seconded by former National Economic and Development Authority Secretary Ernesto Pernia, who pointed out that “from 2016 to 2019, we have been growing an average of 6.6 percent per annum. But if we look at the quality of economic growth, you will see it is mainly driven by consumption and household spending on the demand side and then on the production side it is driven by the services sector, which is not the kind of quality we can sustain and make the economy more dynamic.”

But other participants in the hearing expressed deep concerns. According to Rosario Guzman, executive director of economic think tank Ibon Foundation, “addressing the lack of fiscal stimulus to help the economy recover is more urgent than Charter change. A large stimulus package closer in magnitude to the projected P1.74 trillion contraction in [gross domestic product] in 2020 will immediately spur growth, raise employment and improve the welfare of poor households.”

Senate version: Perceived party list problems

Unlike the House version, the resolution filed by Tolentino and Dela Rosa does not enumerate the constitutional provisions it seeks to amend. But it explicitly mentions the aim of “introducing meaningful reforms reinforcing not only economic growth and development but also more pragmatic democratic representation.”

What are the two senators getting at?

The proposal is apparently in support of Mr. Duterte’s stated desire to remove the party list system from the Constitution in order to purportedly “solve” the long-running insurgency and eliminate leftist groups that have gained public office.

Senate President Vicente Sotto III has confirmed the President’s intent, and said he was writing a law that would amend the party list system and that he hoped would convince the President that convening a Con-ass was no longer necessary.

Other senators maintain that the issues surrounding the party list system only lie in its implementation, which was laid down in Republic Act No. 7941 or the Party-List System Act. Such problems, they stress, can be resolved by merely amending the law instead of resorting to Charter change.

In any case, removing the party list system from our democratic process is to discourage and disincentivize the public’s participation in nation-building. Among legitimate marginalized groups and underrepresented sectors, it is the only way at present to take part in public governance.

The process: Long road ahead

Amending the Constitution is a long process that could take several years to accomplish, and the present administration only has a little over a year in power. That is, assuming its anointed successor falls short in the 2022 national elections.

It is worth mentioning that this isn’t the first time the administration has attempted Charter change. Barely six months into the President’s term, and at the height of his popularity, he convened a consultative committee to revise the 1987 Constitution, appointing as chair former Supreme Court Chief Justice Reynato Puno. The committee or its output was never heard of again in any serious way, which says a lot about the laborious task that lies ahead in changing the Constitution.

The push for Charter change also faces one formidable challenge: the Senate. The steep two-thirds vote to approve amendments means that the administration has to win over the support of senators, a number of whom have expressed reservations this early about the administration’s priorities, especially as the COVID-19 pandemic continues to ravage the country.

But it also would be foolish to dismiss the administration’s efforts outright. Nobody should underestimate the lengths a dynasty would go to save itself from crumbling. Running out of time, the administration and its allies in the legislature may very well resort to other means to railroad the changes they wish to see reflected in our Constitution.

For now, we can only play the role of wary, vigilant witnesses to this spectacle. —CONTRIBUTED

(Editor’s Note: Lawyer Jeo Angelo C. Elamparo, a product of the University of the Philippines College of Law, used to work as a reporter for ABS-CBN News. In his free time, he writes.)