Is it still possible to revise the Constitution for federalism?
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Atty. Antonio Arellano is a member of the Consultative Committee to Review the 1987 Constitution (Concom). He made these remarks at the Kusog Mindanaw 2019 Conference in Davao City on July 11, 2019.
Whoever made this question is also hopeful that there is time to revise the Constitution. We in the Concom share the hope that there is still time to revise the 1987 Constitution. Much more, we believe that indeed, federalism is the answer to the myriad of problems besetting our country and our people. If federalism, they say, is the answer, then what is the question?
Let me start by recalling what former associate justice of the Philippine Supreme Court Renato Puno, our chairman in the constitutional committee created by President Duterte to review the 1987 Constitution, said last June 21, 2018 in a speech he delivered before the first national forum and consultation [on] revising the 1987 Constitution. I would like to quote some portions [of what] he said.
“The federalism initiative of the Duterte administration brings forth and center the issues hounding the country in the context of governance and development. From a historical perspective, the unitary government that exists in the country for the last 500 years produced a myriad of complex problems from the monopolistic control over the political, economic and administrative systems of society to historical injustices committed against the marginalized sectors in various identity-based groups. Unitarianism resulted in the overconcentration of powers to the hands of the few in a small section of the country. It has produced secessionists, insurrectionism, dynastic rule, immature political parties, unequal growth, adventurism in the military, slow justice, extreme poverty and hunger, unemployment and corruption among other.”
The myriad of complex problems enumerated by Chairman Puno is described by social science scholars as problems structural in essence. They identified root causes being the existing political, economic and administrative systems established historically under the fundamental legal parameters of all Philippine constitutions from the 1897 Biak-na-Bato Constitution of the Philippine revolution, the Malolos Constitution of the short-lived Malolos Republic, the 1935 colonial Constitution, the authoritarian 1973 Marcos Constitution, the freedom constitution of the revolutionary government of Corazon Aquino and the present 1987 Constitution drafted by the constitutional commission created by and ratified under the auspices of the Aquino revolutionary government.
All these constitutions were drafted and adopted under conditions of political disturbances [and] established a unitary system of governance with political power over-concentrated at the center of the system. Considering that these problems are systemic or structural-rooted, necessarily, the measures meant to address these problems must also be structural measures which in effect will call for no less than the revision of the constitution itself.
These myriad of social problems are the very same problems then presidential candidate Mayor Duterte promised to address during the campaign. Recognizing that the problems are basically structural, he made heart and center the program of government he adopted the call for structural changes, particularly the call for charter change in order to adopt the federal system of governance as the mechanism to effect the long overdue fundamental changes in the country’s political, economic and administrative systems.
Since the call is for structural changes, particularly the shift from unitary system to a federal system, necessarily, the call will require substantial changes not only in the form and organization of government but more importantly in the constitution’s fundamental governance political philosophy. Thus under the 1987 Constitution, this call for charter change will require the revision and not just the amendment of the 1987 Constitution.
To the question whether there is still time to effect this process within the remaining period of the term of President Duterte, under the 1987 Constitution, the constituent power to propose the revision of the fundamental law is vested in the Congress of the Philippines. Under its rules, the process usually commences with the submission with the pertinent committee of draft bills calling for the convening of Congress’ constituent assembly for the purpose of proposing the revision of the 1987 Constitution together with copies of the proposed revised charter for the body’s eventual deliberation, consideration and approval. This of course is based on the presumption that Congress has given its approval to the proposal to revise the 1987 Constitution which process is governed by the following constitutional rules:
- Under Section 1 of Article 17 of the 1987 Constitution, any revision of the consti will be proposed by congress as a constituent assembly upon the vote of three-fourths of all its members or
- Under Section 3 Congress may by a vote of two-thirds of all its members call a constitutional convention or
- It may by a majority vote of all its members submit to the electorate the question of calling such a convention.
As worded, the provision is problematic. It can cause undue delay in the conduct of the proposal procedure because the provision is vague as to whether Congress is to vote jointly or separately in determining the number of votes required to make the proposal. The phrase “of all its members” is vague since Congress is a bicameral assembly consisting 24 senators and 304 members of the House of Representatives. The required three-fourth number could mean either 246 votes if voting jointly or 18 senators and 185 members of the House if voting separately. Any attempt by Congress to adopt either interpretation may be questioned before the Supreme Court in a case and thus cause the constitutional change efforts to be suspended pending final adjudication of the constitutional issue by the Supreme Court.
If a petition will be brought before the Supreme Court questioning the constitutionality of the process adopted in determining the required number of votes, the question is, for how long will it take the court to finally issue its final and executory judgment? Section 1 Article 8 of the 1987 Constitution provides that the Supreme Court must decide or resolve cases within 24 months from date of submission. This is a maximum period of two years.
Finally, since the Constitution is the social contract of the Filipino people which enshrines the sovereign will, efforts must be maximized to ensure their optimum participation in the process of constitutional change. Massive public consultation, education and information drive must be conducted in all regions of the country. This will require substantial manpower and logistics, and the clock is ticking.
Considering the foregoing complex and problematic nature of this process of constitutional change under the given circumstances, indeed there are serious reasons to doubt that this call for constitutional revision can still materialize within the remaining term of President Duterte. But there are those who cannot afford to doubt, resolutely believing that the only chance to achieve the beginning of this long overdue structural change from the unitary system to federal system of governance is under the leadership of President Duterte. There are those who believe that there is still time to overcome the challenges. For them, there is no other time. For them, the call for action is now.