TONY LA VIÑA, KALOI ZARATE, JAYVY GAMBOA
‘Do we really need to change the Constitution for economic reasons? No.’
Last March 6, the House of Representatives approved on third reading Resolution of Both Houses (RBH) No. 6 calling for a constitutional convention, or ConCon, as a mode of charter change.
RBH No. 6 states that “particular economic provisions of the 1987 Constitution need to be revisited and recrafted so that the Philippines may become globally competitive and attuned with the changing times.”
As opposed to a constituent assembly, or ConAss, which is composed of sitting legislators, ConCon refers to entirely different body composed of separately elected or appointed delegates tasked to draft and propose amendments or revisions to the Constitution. Nonetheless, both modes still require that the proposals be ratified by the people in a plebiscite.
Barely over a week after, on March 14, the House by a supermajority vote passed House Bill No. 7352, or the “Constitutional Convention Act,” the accompanying bill of RBH 6 that operationalizes the ConCon by providing its specifics.
Again, charter change, or popularly known as ChaCha, is upon us.
Unlike the past, there are two things done quite differently this time, namely (1) the lack of the President’s public involvement; and (2) the heavy focus on constitutional convention as a mode of ChaCha.
However, one thing remains: charter change is charter change; it dances to the same chacha tune, then and now.
The President’s writing is on the hall
In stark contrast with the ChaCha pushed during the Duterte administration, there seems to be a lack of the President’s blessing. During the presidential campaign until in his most recent media pronouncements, Marcos has not publicly supported the calls for charter change.
Perhaps, one of the reasons for his isolation is that, similar with previous post-EDSA chief executives, there is imminent distrust once the President himself or herself becomes interested in ChaCha. The sheer power, resources, and machinery at the behest of the President is more than sufficient cause for any and all stakeholders — even those allied with the President — to be cautious of ChaCha.
Without making a value judgment on whether the President should actively play a role in ChaCha, the experiences leading to the 1973 Constitution under Marcos Sr. set the precedent on the dangers of an overly interested and involved president.
However, Pres. Marcos Jr.’s writing is definitely on the hall (a play on the idiom writing is on the wall, which points to clear signs of danger), referring to the legislative halls where ChaCha is now in motion.
We can trace Marcos’s writings back to the postponement of the Barangay and Sangguniang Kabataan elections from December 2022 to October 2023. Electing constitutional convention delegates or voting in a plebiscite can be conveniently scheduled together with a regular election, such as the Barangay and SK elections. The first step in preparing the ChaCha groundwork was buying more time.
Fast forward to today, the Department of Finance led by Secretary Benjamin Diokno has apparently made assurances to Congress that the charter change, particularly the constitutional convention, shall be funded. In addition, the National Economic Development Authority has been making cost estimates on how much budget is needed. Both offices are under the control of the President.
Lastly, needless to say, nothing of this magnitude comes out of Congress in one piece without the President’s nod and protection. Even major laws backed by past presidents like the Reproductive Health Law and the Bangsamoro Organic Law struggled before they were eventually passed.
The how of convening
Attention is now at House Bill No. 7352 (or, later, even at the Senate’s version of such Bill should the latter eventually cow down). Such bill, which operationalizes the ConCon, is a first of its kind in recent history.
As proposed, the ConCon shall be composed of 251 elected delegates, one (1) from each legislative district; and appointed sectoral delegates coming from retired members of the judiciary, academe, legal profession, economists, medical profession, science and technology profession, business sector, labor sector, urban poor, farmers and fisherfolk, indigenous cultural communities, women, youth, veterans, cooperatives sector, senior citizens, and persons with disabilities.
The elected delegates shall be voted for during the Barangay and SK Elections this coming October, while the appointed delegates shall be chosen by the Senate President and the Speaker of the House, respectively.
However, in a Committee hearing, Chief Justice Reynato Puno warned about the danger of existing political dynasties fielding their pseudo-candidates and influencing the election of delegates.
On the other hand, the appointed delegates can be seen as mere tokens, because they comprise only 20% of the ConCon, which can also be stacked with appointees who are allies of the administration.
The ConCon shall commence its term on December 1, 2023 and end on June 30, 2024. After submitting the ConCon Report by July 30, 2024 containing the proposed amendments or revisions to the Constitution, the plebiscite shall be conducted within 60-90 days thereafter.
What the passage of House Bill No. 7352 ultimately means is that the ball is now in the Senate’s hands. By a masterstroke, the twin RBH No. 6 and HB No. 7352 have circumvented the overarching obstacle in Duterte’s ChaCha: whether the House and the Senate should convene and vote jointly or separately. The railroading of these measures by Speaker Martin Romualdez, although borderline unparliamentarian, apparently puts the Senate and its leadership at a defensive.
There is much to debate on the specifics of ConCon. However, we must remember that, while ensuring that the ConCon has integrity is key to a ChaCha that favors at public interest and not vested interests, ChaCha may still very well open a Pandora’s Box.
Never allow the end to be out of sight
Again, despite these new strategies of following through with ChaCha, one thing remains: charter change is still charter change.
We reiterate our strong call for transparency on the risks involved in ChaCha and quote a part of our no-nonsense guide during the Duterte’s last dance with ChaCha in early 2021.
“There exists no constitutional process or mandate […] that can, by force of law, limit the scope of a charter change. We, as of now, cannot have any assurance that what is being proposed today is and shall remain to be a charter change of economic provisions, and not of term extensions or of abolition of party-lists – because there is no such limitation known in legal parlance.
When those who assure the public that what will be tinkered are merely the economic provisions [like RBH No. 06], we are left at the mercy of their words and promises.”
In fairness, House Committee on Constitutional Amendments Chairman Rep. Rufus Rodriguez has publicly recognized such possibility happening. Some legislators have downplayed such risk by saying that, at the end of the day, the people still have the choice to ratify the specific proposals or not.
The very least that we can do now is to not be unnecessarily occupied by the talking points of how ConCon is modeled, scheduled, and financed as if it is the be-all and end-all of this issue, and to not allow ChaCha’s end to be out of our sights.
The whys of charter change
Having reminded ourselves of such danger, do we really need to change the Constitution for economic reasons?
No. Those pushing to further liberalize our economy are apparently adept and successful in using the legislative mode in their favor. A recent example is the amendment of the Public Service Act to ease foreign ownership requirements, the economic impact of which we have not yet seen and felt as advertised by those who aggressively lobbied and pushed for such. Then why immediately tinker with the Constitution?
Are there constitutional provisions that need to be revised?
Certainly, some changes are imperative: among others, making self-executory the anti-political dynasty provision; establishing the Commission on Human Rights as an independent constitutional commission; modifying and not abolishing the party-list system to make it more responsive to the demand of inclusive representation; and expanding the Bill of Rights to include socio-economic and cultural rights and making violation of such rights actionable before courts of law.
We doubt however that a ConCon dominated by district-elected delegates can deliver such a progressive ChaCha.
Finally, and most important, will ChaCha now make an immediate difference in addressing the big challenges our country is facing now?
Here we go again, and here we say again: no.
Tony La Viña teaches constitutional law at the University of the Philippines and several Mindanao law schools. He is former dean of the Ateneo School of Government.
Kaloi Zarate is a former three-term member of the House of Representatives and Deputy Minority Leader of the 18thCongress.
Jayvy Gamboa is a policy and legal research associate at the Manila Observatory.
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