Amicus Curiae

Charter change is coming

Rodulfo Jose R. Martinez

January 11, 2017

President Rodrigo Duterte ran his presidential campaign on the slogan “CHANGE IS COMING,” promising true and lasting change, most notably in the area of peace and order and graft and corruption. Among the other drastic changes President Duterte espoused in his campaign was the shift to a federal form of government, from our current centralized and unitary form. The President’s resolve in executing this was made abundantly clear during his first State of the Nation Address, where he gave marching orders to all the members of Congress, most of them now belonging to a so-called “super majority” allied with him, that he wants a federal system of government similar to that of France. Presumably, the President, a lawyer and former prosecutor, understands that implementing the shift will require a major overhaul of the Constitution, which will radically rework the current setup of our government as provided therein. Thus, the same can only be implemented through a constitutional convention (Con-Con) or a constituent assembly (Con-Ass) based on Article XVII of the 1987 Constitution.

Initially, President Duterte was reportedly in favor of revising the Constitution by calling a Con-Con to avoid any suspicion of dictating on lawmakers. However, he is said to have changed his mind on the matter, and is now in favor of convening Congress as a Con-Ass for “practical reasons.”

It goes without saying that the choice of going with a Con-Con and a Con-Ass will be critical and decisive in effecting purposeful, significant, and meaningful changes to our fundamental law.

What are the main differences between the two (2) modes?

To revise the Constitution via Con-Con, the Con-Con can be called by a two-thirds vote of all its members. Alternatively, by a majority vote, Congress may submit the question of calling for a Con-Con to the electorate.

In a Con-Con, delegates are either appointed or elected by the people. The Con-Con will undertake the work of proposing amendments/revisions to the constitution as a separate body that is outside the control of any of the existing departments.

In the words of Justice Makasiar, in his concurring opinion in the landmark case of Javellana v. Executive Secretary, the Con-Con is “co-ordinate and co-equal with, as well as independent of, the three grand departments of the Government, namely, the legislative, the executive, and the judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three departments as to the content as well as form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including the printing of its own journals.”

The Con-Con, therefore, is a body that is apolitical. It is not under any of the three departments. It enjoys free-wielding and plenary power insofar as its duty to review and propose amendments and revisions to the Constitution is concerned.

Within that sphere, the Con-Con can be said to be supreme. The Con-Con is a body that is convened for a very specific purpose, thus, it can fully concentrate and devote its time and resources to the accomplishment thereof. Also, it would allow for Constitutional and other legal experts to serve as delegates.

However, convening a Con-Con will take time since, based on our experience in the past, a nationwide election will have to be held to elect delegates from all over the country. Also, since we will have to maintain a “fourth department” for four to five years, the same will entail expenses amounting to billions of pesos.

On the other hand, in a Con-Ass, no new election is to be had since the Members of Congress, both in the House of Representatives and the Senate will themselves review and propose changes to the Constitution. Sitting as a Con-Ass, Congress will be able to propose amendments and revisions to the Constitution by a three-fourths vote of all its Members.

Clearly, the best-selling points of a Con-Ass are the expedience and practicality it offers. With it, a need for electing delegates is dispensed with, since it is comprised of the same lawmakers we have duly-elected.

Since no new body is created, additional expenses, if any, will be significantly lower. Furthermore, many of our representatives in Congress are already experienced in the process of passing laws, which will be of invaluable use in crafting our new fundamental law.

However, Congress will be performing a dual-role, as a legislature passing laws of national scope and importance, and as a body proposing changes to the Constitution. Thus, since Congress will essentially be serving “two masters” at the same time there is thus the question or fear that Congress will be able to sacrifice one for the other.