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Constitutionalism and Charter Change 2021

“Ideally, the Constitution should be the paramount law to which all three departments of the government must yield.

Victor Avecilla

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The ongoing discussion in Congress regarding proposed amendments to the Constitution is an exercise in futility. Those plans are doomed to fail.

Article XVII of the Constitution mandates that any amendment to the Charter requires both chambers of Congress, voting separately, to propose the amendments. Then Congress itself must enact a law calling for a plebiscite, and to appropriate funds for it. Then the plebiscite must be held, but only following a period of public discussion anywhere from 60 to 90 days. Thereafter,

the Commission on Elections must canvass the votes. If the call for the plebiscite is fraught with anomalies, it’s legality can be challenged in the Supreme Court.

By October 2021, everyone in Congress will be busy campaigning for the May 2022 elections. Congress will not have enough time for serious stocktaking on the proposed changes.

Ironically, the Congress that saw a need for charter amendments in 2021 will not be the same Congress that will carry out the charter changes after the May 2022 elections. Other politicians who have other plans in mind will inevitably enter the constitutional landscape, and what they will do under the amended charter will be anybody’s guess.

Therefore, today’s Charter change advocates may not be around after May 2022 to enact the legislation they had in mind under an amended Constitution.

The plebiscite itself will require hundreds of millions of pesos — money better spent for the Covid-19 vaccines to be imported by the country at the cost of billions of pesos in borrowed money. In May 2022, voters may not forgive the politicians who chose to spend millions of pesos on a plebiscite when there is a gigantic bill to be paid for the imported vaccines.

It is worth emphasizing that the Filipino people will always view attempts by Congress to amend the Constitution with suspicion and distrust. Proposals to revise the charter are largely seen as stealthy schemes to extend the terms of incumbent elective officials. Many prominent personalities in Congress have not concealed their desire for term extensions.

The existing Constitution has been in force since its ratification in February 1987. It has never been amended, and yet it managed to function for the past 33 years. All presidents from Corazon Aquino to her son Benigno Aquino III have all claimed a vibrant economy during their terms under this Constitution.

The current charter has imperfections, yes, but the Supreme Court is there to provide an authoritative interpretation of any ambiguous or equivocal provisions.

There is a saying that one does not need to fix something that isn’t broken. So, why do we need to amend the Constitution?

Charter change proponents in Congress claim that proposed amendments to the Constitution shall be limited to its provisions on the national patrimony and nationalized industries and pursuits. Their plan is to add the catch-all phrase “unless otherwise provided by law” in each of those provisions.

That phrase sounds harmless, but its ultimate objective is to divest the Constitution of its role as the equitable distributor of the powers of the State, and thus allow Congress to dominate the government.

Ideally, the Constitution should be the paramount law to which all three departments of the government must yield. One rationale for the principle of separation of powers, which characterizes traditional constitutional government, demands that when one department of the government becomes too powerful, it becomes the constitutional duty of the two other departments to cut down the overbearing department.

In other words, none of the three departments of the government may, at any time, enjoy a marked advantage over the other two, and that’s because one purpose of the Constitution is to equitably distribute the totality of state power among the three departments.

Thus, inserting the phrase “unless otherwise provided by law” will not only give the legislative department of the government an undue advantage over the other departments; it will create an all too powerful Congress, a “super legislature” even, whose whims can supersede virtually any provision of the fundamental law of the land.

That, by any standard, is antithetical to the very idea of the Constitution being both a source of, and at the same time, a limitation on public power.

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