Constitutional Conventions: How far can they go?

Last March 6, 2023, the House of Representatives passed a Resolution calling for a Constitutional Convention with a supermajority of 301 Representatives. Speaker of the House Martin Romualdez announced that those who supported the Resolution are “in a rush to amend the restrictive economic provisions” of the Constitution, referring to the limitations imposed on foreign direct investments.

The Resolution needs the approval of the Senate, where it was received with less enthusiasm. Senate President Miguel Zubiri revealed that half of the Senators are not in favor of calling a Constitutional Convention, and that amending the charter is not part of the Senate’s priority. Even President Ferdinand Marcos Jr., speaking before an official trip to Japan, reiterated his prior position that amending the Constitution is not a priority of his administration.

The situation in the Senate makes the prospects of a Constitutional Convention less promising. However, even if it were to happen, there is a question of how far can the Convention go in amending the Constitution? Can Congress really limit the work of the Convention to the economic provisions of the Constitution?

The prospect of entrusting constitutional amendments to victors in an election elicited the skepticism of some experts. Former Chief Justice Reynato Puno, himself an advocate of shifting to Federalism, warned that appointing members of the convention solely from the results of elections might lead to political dynasties controlling the entire process. He fears that the entire convention might just be composed of “proxies” of these dynasties.

In response, Cagayan de Oro Representative Rufus Rodriguez, chairman of the House Committee on Constitutional Amendments, proposed allowing President Marcos to appoint 50 experts and sectoral representatives. Among the names he has floated is that of former COMELEC Chair Christian Monsod, who was also a member of the 1986 Constitutional Convention.

Even if the President were to appoint 50 of the country’s brightest legal minds and representatives from the most vulnerable sectors of society, these appointees will still be dwarfed by the number of members to be elected from over 300 legislative districts across the country. Those elected members, unlike the experts, will owe their presence in the convention to the voters of their district. In many cases, it will be likely that members are elected because they wanted to change more than just the economic provisions.

A Constitutional Convention is the second mode of proposing “amendments or revisions” to the Constitution. While they sound similar, there is actually a big difference between the two. Amendments refer to changes in specific provisions in the Constitution, without changing the essential structure of government while Revisions are much broader, and can include rewriting the entire Constitution, such as shifting to a Federal form of Government.

Revisions can include shifting to a Parliamentary system. Under that system, both executive and legislative powers are vested in only one body, which is the Parliament. Executive power will be exercised by a Prime Minister, who is himself a member of Parliament. It will be a major departure from our present system, where executive and legislative powers are separated from each other. It can also include adopting Federalism, which greatly increases the autonomy of local governments, and severely limits the powers of the Federal Government.

Proposals to shift to either Parliamentary or Federal forms of government have been lingering for the longest time, with President Rodrigo Duterte even making campaign promises to shift the country to Federalism.

If a constitutional convention is called, all of these changes are on the table. Fr. Joaquin Bernas, SJ, constitutional expert and member of the 1986 Constitutional Commission, wrote that the difference between amendments or revisions matter little when constitutional provisions are followed. In short, the entire Constitution will be open to review if a Constitutional Convention is convened, regardless of the motivations of Congress. After all, since such conventions are exceedingly rare and hard to convene, what’s to stop members of the convention from looking into ever-present calls from multiple sectors to shift to a Parliamentary or a Federal form of government?

Such a case would only be consistent with the history of such conventions. Prior to President Corazon Aquino’s appointment of a Commission to craft the present Constitution, there have been two conventions which were composed of members elected by the People.

In 1934, elections were held to form the Constitutional Convention which drafted the 1935 Constitution. It was this convention which first formally adopted the three-pronged branches of government largely based on the Federal Government of the United States.

Elections were held again in 1970 to choose over 300 members who would draft what became the 1973 Constitution. This constitution was known for replacing the House and the Senate with just one entity called the “Batasang Pambansa.” It also granted significant power to the President, which essentially allowed then-President Ferdinand Marcos Sr. to pass laws without convening Congress.

In both these cases, the conventions did not limit themselves to changing individual provisions, but to making wholesale changes to the structure of the country.

In the end, if the supporters of amending the Constitution can convince enough friendly Senators’ votes to call a Constitutional Convention, it may be possible that those who will be eventually elected as its members will really restrict themselves to amending economic provisions. However, history tells us that if a Constitutional Convention is called, we may be looking at an entirely different Constitution at the end of the process.

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

Jason Don S. Dizon is an underbar associate of the Litigation and Dispute Resolution Department (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.

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