Analysing the difficulty of constitutional reform in the Philippines

And yet another reason why the Philippine charter has remained unamended for 32 years lies in the nation’s tradition of judicial review, specifically the power of the judiciary, i.e., t[r]

Michael Henry Yusingco

Ateneo School of Government, Ateneo de Manila University, Philippines

Abstract

Initiatives to change a constitution is part and parcel of being a constitutional democracy Resisting such an initiative, provided it is supported by a rational public deliberative process, is

an integral component of constitutional democracy as well As a constitutional democracy, the Philippines finds itself perfectly within this constitutional reform context This paper analyzes the long history of charter change initiatives in the country and draws out the reasons why the 1987 Philippine Constitution continues to remain immune from reform and amendment First, the way the amendment process is articulated in the text has given rise to contesting views making the launching of a strong and united initiative to amend or revise the charter very difficult Second, the political context surrounding all the moves to amend or revise the 1987 Constitution has always been dominated by a lack of trust, specifically directed at those pushing for it Indeed, a trust deficit so severe, proponents have always failed to garner national support for their cause Third, there is a subtext in the evolution of the country’s constitutional order that underpins the endurance of the 1987 Constitution and that is the supremacy of its Supreme Court in determining what it means Because of this, a culture of critical constitutional analysis in the community has never been cultivated Consequently, a consensus of amending or revising the charter has never naturally evolved A profound disconnect between citizens and the charter has made it impossible

to launch a credible charter change initiative But the moment calls for Filipinos to deeply reflect

on their national charter and how this has impacted the political economy of the country for the past three decades Therefore, understanding these reasons is imperative for the nation’s constitutional maturity and must be studied further as part of a constitutional reform project

Introduction

President Rodrigo Duterte assumed office in July 2016 His party, PDP-Laban, had campaigned under the slogan: “No to Drugs, Yes to Federalism” Duterte thus committed to shepherding the Philippines towards a federal form of government; an undertaking that would require an extensive overhaul of the country’s constitution

In December 2016 President Duterte issued Executive Order No 10 directing the creation of

a Consultative Committee on constitutional reform The mandate of the committee was to “study, conduct consultations, and review the provisions of the 1987 Constitution including but not limited

to the provisions on the structure and powers of the government, local governance, and economic policies.” The committee was ordered to submit a report to the President within six months after it was convened

However, there was a long delay before this committee was actually activated as members of

the committee were appointed only in January 2018 The committee was headed by former Chief

Justice Reynato Puno and comprised of former jurists, legal practitioners and scholars Appointees

also included the late former Senate President Nene Pimentel, a long-time advocate of federalism,

as well as several members from the minority communities such as the Bangsamoro and Cordillera

The committee was directed by President Duterte to produce a draft federal constitution by June 2018 This would have enabled Duterte to announce the draft in his State of the Nation address

scheduled on July 23, 2018 The common view at that time was that he would endorse the draft to both

the Senate and the House of Representatives and thus initiate the process of constitutional change

The committee was able to submit their work, which they labelled as the Bayanihan Federalism draft,

to President Duterte on July 9, 2018, and a final version was accomplished on July 171

But the much-anticipated endorsement was not given when President Duterte delivered his 3rd

State of the Nation Address In fact, the attitude he exhibited towards constitutional change seemed

ambiguous and offered no clear indication where and how he wanted the initiative to proceed, to wit:

“Four administrations before me have all tried to amend the Constitution to be able to introduce

amendments and reservations to the charter – revisions rather to the charter But none of them

was successfully done for one reason or another

I therefore consider it a distinct honor and privilege to have received earlier from the Consultative

Committee that I created, the draft Federal Constitution that will truly embody the ideals and

aspirations of all the Filipino people

I thank all the members of the Committee, especially those who came out from their retirement,

for their valuable services in crafting this draft Federal Constitution I would like to extend my

particular gratitude to Former Chief Justice Reynato Puno and Former Senate President Aquilino

Pimentel, Jr

I am confident that the Filipino people will stand behind us as we introduce this new fundamental

law that will not only strengthen our democratic institutions, but will also create an environment

where every Filipino—regardless of social status, religion, or ideology – will have an equal opportunity to grow and create a future that he or she can proudly bequeath to the succeeding

generations”2

Pertinently, just days after President Duterte’s tepid response to the Bayanihan Federalism draft,

the heads of vital national government agencies such as the National Economic and Development

Authority, the Secretary of Finance, and the Secretary of Defense, separately expressed reservation

on the readiness of the country for federalism.3 Notably, some of the country’s biggest business groups

1 Pia Ranada, ‘Final version of Consultative Committee draft constitution’ (Rappler, 17 July 2018) <https://www.

rappler.com/newsbreak/84-documents/207513-consultative-committee-draft-constitution-final-version-document>

accessed 18 August 2018

2 See https://www.officialgazette.gov.ph/2018/07/23/rodrigo-roa-duterte-third-state-of-the-nation-address-july-23-2018/

3 Ben O De Vera, ‘Economic managers: Don’t rush federalism shift’ (Philippine Daily Inquirer, 7 August 2018)

<https://business.inquirer.net/255235/economic-managers-dont-rush-federalism-shift> accessed 10 August 2018 and

Francis Wakefield, ‘Lorenzana: ‘PH not yet ready for federalism’’ (Manila Bulletin, 11 August 2018) <https://news.

mb.com.ph/2018/08/10/lorenzana-ph-not-yet-ready-for-federalism/> accessed 12 August 2018

came together to express serious anxiety over the proposed constitution The group specifically raised concern about “the ambiguous provisions on the division of revenue and expenditure responsibilities between the proposed federal government and its federated regions”1

At that point, the current administration’s ambition to change the Philippine constitution seemed

to have been stopped dead on its tracks But President Duterte surprisingly injected the drive with new energy issuing Memorandum Circular No 52 on October 2018 calling for the organization of the Inter-Agency Task Force on Federalism and Constitutional Reform (IATF) which is to be spearheaded

by the Department of the Interior and Local Government’s (DILG)2

The creation of the IATF appears to be a signal that the charter change initiative has not been relegated to the dustbin With this new mandate to push the constitutional reform agenda even beyond the Bayanihan Federalism draft, there was an expectation again that President Duterte will have

a stronger and more explicit exhortation in his State of the Nation Address in July 2019 to rally more support for his agenda to change the constitution Indeed, there were talks once again that the President would expressly direct the fast-tracking of the constitutional reform process in order to finish this before his term ends in 2022 But to the shock and disappointment of all those expecting

a more compelling and firmer declaration of support, there was absolutely no mention of federalism

or charter change in the President’s State of the Nation Address last July 22, 20193 Adding to the confusion and frustration felt by his followers, in an interview immediately after his address, President Duterte told reporters that “it is not the proper time” to discuss the issue of constitutional reform, even conceding that this could happen after his term ends in 20224

Despite President Duterte’s ambivalence, the IATF is still determined to advocate for constitutional reform It is presently undertaking a nationwide information campaign about the benefits of charter change It has also submitted amendment proposals to Congress, even though neither the Senate nor the House of Representatives have classified constitutional reform as a priority For the moment therefore, the charter change aspiration of the Duterte administration is moving at a very slow pace with still very little hope it can gain the necessary traction before his term ends in 2022

Initiatives to change a constitution is part and parcel of being a constitutional democracy Resisting such an initiative, provided it is supported by a rational public deliberative process, is an integral component of constitutional democracy as well As a constitutional democracy, the Philippines finds itself perfectly within this constitutional reform context Notably, only a few academic articles or materials comprehensively discussing constitutional reform efforts in the country are available for researchers Most works are focused only on particular aspects of constitutional reform efforts in

1 Louella Desiderio, ‘Business Groups: Weigh costs, risks of federalism’ (Philippine Star, 13 August 2018) <https://

www.philstar.com/headlines/2018/08/13/1842117/business-groups-weighcosts-risks-federalism> accessed 13 August 2018

2 See https://www.officialgazette.gov.ph/downloads/2018/10oct/20181031-MC-52-RRD.pdf

3 Camille Elemia, ‘No charter change, federalism push in Duterte’s SONA 2019’ (Rappler, 22 July 2018) <https://www.

rappler.com/nation/236044-no-federalism-duterte-sona-2019-philippines> accessed 23 July 2019 and see https:// www.officialgazette.gov.ph/2019/07/22/rodrigo-roa-duterte-fourth-state-of-the-nation-address-july-22-2019/

4 Elmor Santos, ‘Duterte leaves out charter change, federalism in SONA 2019’ (CNN Philippines, 22 July 2019)

<https://cnnphilippines.com/news/2019/7/22/duterte-federalism-charter-change-sona-2019.html?fbclid=IwAR1E8w-gwdyfew6ljBmoG6ricUZd3_mM0LNTf-8Y50JJzzKY1ecLK_yWwMxo> accessed 23 July 2019

the Philippines For instance, in 2007, law professor Gatmaytan-Magno, wrote an article chronicling

the contrasting response of the Supreme Court to petitions challenging the constitutionality of constitutional amendments in 1973 and in 2006.1 In 2017, the Ateneo School of Government published

a “citizen’s handbook” showcasing the pros and cons of shifting to a federal system of government.2

The most recent academic output is a compendium of different works assessing specific impacts of

the 1987 Constitution and published by a research center based in the University of the Philippines.3

Indeed, most accounts and analyses of charter change as a comprehensive political undertaking come

from journalistic reportage and investigation This effort aims to add to the currently thin collection

of legal and constitutional analytical works by providing an organized review of the constitutional

reform efforts in the country and a methodical discussion of the concomitant difficulty of effecting

change, be it big or small, to the current national charter

The discussion section will identify three reasons why attempts at charter change in the Philippines

have failed First, the way the amendment process is articulated in the text has given rise to contesting

views making the launching of a strong and united initiative to amend or revise the charter very difficult Second, the political context surrounding all the moves to amend or revise the nation’s

constitution has always been dominated by a lack of trust, specifically directed at those pushing for

it Indeed, a trust deficit so severe, proponents have always failed to garner national support for their

cause Third, there is a subtext in the evolution of the country’s constitutional order that underpins

the endurance of the national charter and that is the supremacy of its Supreme Court in determining

what it means Consequently, preventing the desire to change the constitution from being organically

fostered in the polity

The concluding section will discuss a possible new approach to constitutional reform in light

of the impediments identified from the Philippine experience as well as offer insights which can be

relevant for charter change initiatives in other jurisdictions

Discussion

A constitution is treated as the supreme law of the land in most nation-states Constitutions establish the system of government, distribute and restrain government power and protect the rights

of citizens It also embodies fundamental prescriptions concerning identity, values and principles that form the core of political and social interaction within the nation-state4 However, while often

envisioned to be both foundational and enduring, constitutions are not immutable or immortal

Indeed, pathologies in a constitution can emerge during its reign These pertain to provisions in

the constitutional text itself that may have been designed with good intentions but have eventually

1 Dante Gatmaytan-Magno, “Changing Constitutions: Judicial Review and Redemption in the Philippines” in Pacific

Basin Law Journal, 2007, Vol 25, No 1, pp1-24.

2 Eduardo Araral, Jr., Paul D Hutchcroft, Gilberto M Llanto, Jonalthan E Malaya, Ronald U Mendoza and Julio C

Teehankee, Debate on Federal Philippines: A Citizen’s Handbook (Ateneo de Manila University Press, 2017)

3 Maria Ela L Atienza, Editor, Chronology of the 1987 Philippine Constitution (UP Center for Integrative and

Development Studies and the International Institute for Democracy and Electoral Assistance, 2019)

4 Armin von Bogdandy, Stefan Haubler, Felix Hanschmann and Raphael Utz, “State-Building, Nation-Building, and

Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches”

in Max Planck Yearbook of United Nations Law, 2005 Volume 9, pp579-613, 597.

become debilitating to the political system it purports to govern Thus, giving rise to calls for amending

it or even changing it completely In fact, most constitutional scholars agree that national constitutions remain unamended on the average only for 19 years1

Presently, constitutional reform initiatives are being advocated or being undertaken in various countries in Asia In South Korea, the amendment of their constitution is under consideration because of the critique that the stature of their president in the national charter is too “imperial” A combination of increasing the rights of citizens and further limiting presidential authority is being sought by promoters of constitutional reform2 In Japan, the government of the day is seeking to amend the constitution to reconfigure the constitutional limitations imposed on Japan’s national defence capability after its defeat in World War II3 Whilst in Myanmar, Aung San Suu Kyi’s National League for Democracy is pushing to reform Myanmar’s constitution to make it more reflective of democracy and the ethnic diversity of its population4 These are just a few examples Indeed, the Philippines is just one amongst a list of countries in the region contemplating or undergoing constitutional reform Accordingly, motivations for changing the written text of a constitution will be different for each country thinking of or going through this process Amendments may be targeted to keep the constitution up-to-date specifically with regards to substantial changes to the economic condition, demographic distribution and cultural evolution of the nation-state Amending the national charter can also be about just correcting particular provisions that have become outdated Of course, constitutional reform can also be about strengthening democratic institutions and human rights However, changes to the constitution could also be driven by selfish or partisan goals History bears out that those in power are often motivated to amend or change the national charter to extend or remove term limits, to marginalize opposition parties or minorities, or to undermine civil and political rights The fact of the matter is even though a constitution is typically described as a fundamental legal document characterised by some degree of permanency, it is never immune from political contestation And sometimes challenges to the prevailing constitutional order lead to revisions and even to a complete transformation of the existing constitutional framework The ideal scenario would

be for the amendment process enshrined in the constitution to allow amendments when the polity, after due consideration, deem it to be necessary and at the same time can also prevent any change when it is clearly motivated by elite self-interest and partisan objectives Obviously, this is not always the case In most cases in fact, constitutional change is not a perfect and tension-free process

According to Elkins, Ginsburg, & Melton, even though a constitution may leave in its wake relative winners and relative losers, it will not be subject to change if majority of the polity, which is

1 Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge University

Press, 2009) p2

2 Chaihark Hahm, ‘Reflections on South Korea’s Constitutional Future’ (IACL-AIDC Blog, 22 June 2018)

<https://blog-iacl-aidc.org/south-korea-at-a-crossroads/2018/6/22/reflections-on-south-koreas-constitutional-future> accessed 10 July 2018

3 Ellis Krauss, “Japan’s constitutional revision debate isn’t asking the right questions’ (East Asia Forum, 19 February 2019)

<https://www.eastasiaforum.org/2019/02/19/japans-constitutional-revision-debate-isnt-asking-the-right-questions/> accessed 20 June 2019

4 Skylar Lindsay, ‘Constitutional reform in Myanmar: A move towards peace?’ (ASEAN Today, 7 February 2019)

<https://www.aseantoday.com/2019/02/constitutional-reform-in-myanmar-a-move-towards-peace/ > accessed 20 June 2019

the aggregate of all losers and winners, continue to believe that they are better off under the current

charter and would be averse to taking a chance on, and spending resources in, negotiating for a new

one1 Worth noting that this public process of determining whether the polity needs to change the

constitution or not is not an easy one But it is a necessary component of constitutional reform, indeed

a necessary first step of the entire exercise The Philippines remains to be in this phase And there

are challenges here that make moving beyond it so very difficult for the country, thus hindering it

from going far with constitutional reform Leading to the reality that Philippine Constitution remains

unchanged since its ratification in 1987

The 1987 Constitution: Unchanged since Ratification

The Philippines has had three constitutions The first one was in 1935 which was part of the

preparatory process before the granting of independence by the United States in July 19462 The

second one was in 1973 which provided the colour of legitimacy to President Ferdinand Marcos’

fourteen-year dictatorial regime3 The third one took effect in 1987 restoring a republican democratic

system in the country4

The 1987 Constitution is one of the few enduring constitutions in the world because it has stood

for more than three decades without any amendment This is quite remarkable considering that as

previously mentioned, most constitutional scholars will agree that a constitution on the average remain unamended only for 19 years5 And this charter has indeed faced several amendment attempts

In 1997, as his 6-year term was about to end, then President Fidel V Ramos initiated efforts to amend

the 1987 Constitution with the help of a group called the People’s Initiative for Reform Modernization

and Action or PIRMA This group planned to amend the charter via a people’s initiative The late

Senator Miriam Santiago, a staunch and fiery critic of President Ramos, filed a petition in the Supreme

Court questioning the propriety of the group’s chosen method in amending the constitution The court

ruled in favour of the petition citing the inadequacy of the law regulating the method of people’s

initiative6 This decision effectively stopped the charter change campaign of PIRMA, but the failure

of President Ramos to achieve his goal of amending the 1987 Constitution was mainly attributed to

his administration’s failure to overcome widespread public suspicion that their primary intent was to

extend his term and those of other elective officials7

In 2000, two years into his term, then President Joseph Estrada also launched an initiative

to amend the 1987 Constitution with the aid of the Constitutional Correction for Development or

CONCORD President Estrada was a very popular president, but even his popularity could not carry

1 Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge University

Press, 2009) p7

2 See https://www.officialgazette.gov.ph/constitutions/1935-constitution-ammended/

3 See https://www.officialgazette.gov.ph/constitutions/the-amended-1973-constitution-2/.

4 See https://www.officialgazette.gov.ph/constitutions/1987-constitution/

5 Zachary Elkins, Tom Ginsburg & James Melton, The Endurance of National Constitutions 2 (Cambridge University

Press 2009)p7

6 Santiago vs Comelec (G.R No.127325, March 19, 1997).

7 Antonio G.M La Viña and Joy G Aceron, The 1987 Constitution: To Change or Not To Change? (Anvil Publishing,

Inc., 2012) p53

his charter change ambitions over public scepticism At one point, he even publicly lamented the people’s lack of support despite his active campaigning for charter change His plan though was ultimately stopped when he resigned from office in 2001

Then President Gloria Macapagal-Arroyo, with the rabid support of then House Speaker Jose de Venecia, initiated in 2006 a charter change effort through a purported, but actually government led, people’s initiative called Sigaw ng Bayan This effort was also questioned before the Supreme Court

The court also ruled against Sigaw ng Bayan using the Santiago case as precedent2 Similarly, this decision also put a stop to President Arroyo’s plans to amend the 1987 Constitution But her failure was still ultimately blamed on the “lack of credibility of leaders and initiators” of the effort, including the president herself3

Since the Lambino case in 2006, there had been only a few attempts made by members of the

House of Representatives to amend the 1987 Constitution In 2008, the principal advocate of shifting

to a federal system of government, the late Senator Nene Pimentel, filed Joint Resolution No.10 which was supposed to be the draft of a federal constitution But neither chamber of Congress acted

on it Indeed, for the past 32 years, Congress has been unable to exercise its constituted power to amend the 1987 Constitution So, what could be the reason or reasons for this inability which has caused the Philippine constitution to remain unchanged since its ratification in 1987?

Problematic Text

A deeper analysis of the difficulty in changing the 1987 Constitution must begin with looking at the amendatory process enshrined in Article XVIII:

“SECTION 1 Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention

SECTION 2 Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter The Congress shall provide for the implementation of the exercise of this right

SECTION 3 The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention

SECTION 4 Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision

1 Antonio G.M La Viña and Joy G Aceron, The 1987 Constitution: To Change or Not To Change? (Anvil Publishing,

Inc., 2012) p57

2 Lambino vs Comelec (G.R No.174153, October 25, 2006).

3 Antonio G.M La Viña and Joy G Aceron, The 1987 Constitution: To Change or Not To Change? (Anvil Publishing,

Inc., 2012) p64

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes

cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after

the certification by the Commission on Elections of the sufficiency of the petition”

Immediately notable here is that the 1987 Constitution has made a distinction between amendment

and revision1 The former pertains to changes to particular provisions in the charter only, while the

latter contemplates a total overhaul of the entire document This distinction is relevant because the

people can directly propose only amendments to the charter A revision cannot be initiated by the

people by their direct action

According to the Supreme Court, “Revision broadly implies a change that alters a basic principle

in the constitution, like altering the principle of separation of powers or the system of

checks-and-balances There is also revision if the change alters the substantial entirety of the constitution, as when

the change affects substantial provisions of the constitution On the other hand, amendment broadly

refers to a change that adds, reduces, or deletes without altering the basic principle involved Revision

generally affects several provisions of the constitution, while amendment generally affects only the

specific provision being amended”2

To summarise then, there are three modes of changing the 1987 Constitution: (1) By Congress;

(2) By a constitutional convention; and (3) By people’s initiative

Congress therefore has been given by the 1987 Constitution the power to amend and revise the

constitution, either by its own effort or by calling for the creation of a constitutional convention The

charter does not provide an exact definition for constitutional convention But this is to be understood

as a body comprised of elected delegates with the specific mandate to amend or revise the constitution

Congress is tasked to provide the specific mechanics in creating this body

Note that “the power to amend the Constitution or to propose amendments thereto is not included

in the general grant of legislative powers to Congress It is part of the inherent powers of the people

– as the repository of sovereignty in a republican state, such as ours – to make, and, hence, to amend

their own Fundamental Law Congress may propose amendments to the Constitution merely because

the same explicitly grants such power”3

Pertinently, because in exercising this constituted power “the members of Congress derive their

authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on

whether or not their acts are within or beyond constitutional limits”.4 Their acts are “justiciable, not

political, and, hence, subject to judicial review”5

It must be noted that the 1987 Constitution established a bicameral legislature6 The Upper Chamber is the Senate, composed of 24 members who are elected at large7 The Lower Chamber is

the House of Representatives comprised of 291 members majority of whom are elected via single

1 Santiago vs Comelec (G.R No.127325, March 19, 1997).

2 Lambino vs Comelec (G.R No.174153, October 25, 2006).

3 Gonzales vs Comelec (G.R No L-28196, November 9, 1967).

4 Id.

5 Id.

6 Constitution of the Philippines art VI, § 1 (1987).

7 Constitution of the Philippines art VI, § 2 (1987).

member districts while a small minority are elected via a party-list system Both chambers can initiate legislation and all enactments must have the imprimatur of both chambers

One reason why the Philippine charter continues to be unamended could be the lack of clarity in the text itself on how to go about it Some members of Congress favour the first mode because they see

it as the practical choice Obviously, amending or revising the charter can be integrated in their regular legislative work with minimal additional costs to taxpayers Whereas a constitutional convention will require a special budgetary allocation to cover its operations, the amount of which could be quite significant for a country still grappling with economic inequality and poverty Curiously however, some charter reform advocates still prefer this mode because for them any cost to be incurred by the state should be acceptable given the gravity of this political exercise for all Filipinos2

To make matters even more volatile, the 1987 Constitution provides that any “amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members” The phrase “of all its members” has raised the question of whether the bicameral Congress acting as a constituent assembly should vote separately or jointly?

In cases where a joint session of a bicameral legislature is held, the sizes of the two houses become absolutely material when it comes to decision-making If the upper house is small, it will easily be outvoted by a bigger lower house and vice versa The prevailing view is that the two chambers of Congress should vote separately The surviving members of the 1986 Constitutional Commission, which drafted the 1987 Constitution, are unanimous in advocating this position Former members of the Supreme Court, legal scholars and all incumbent senators insist that the voting must not be done jointly However, some lawmakers, particularly from the House of Representatives, insist that Congress can vote as one body and therefore the lower chamber can proceed even without the cooperation of all the senators3 Moreover, in such a scenario, the members of the House of Representatives will easily outnumber, and therefore inevitably outvote, members of the Senate Hence, the strong opposition against this joint voting theory

These conflicting views continue to divide politicos and lawmakers The disagreement has been

so intense that proponents of charter change have not been able to garner the necessary support in both chambers of Congress The divide caused by this confusion has prevented Congress from exercising its constituted power to implement reforms to the 1987 Constitution Notably, these matters are still the subject of ongoing debates amongst politicians and scholars in the country

Deep Public Mistrust

Another reason why the Philippine constitution has not been amended concerns the context whenever such a proposal is made This move has always been viewed as an underhanded scheme to extend the term of a sitting president This national “scepticism is rooted in the Marcos era where the

1 Constitution of the Philippines art VI, § 5 (1987).

2 Mara Cepeda, ‘How Do You Want to Elect Your Con-Con Delegates?’ (Rappler, 6 July 2012) <https://www.rappler.

com/newsbreak/iq/138696-election-constitutional-convention-delegates> accessed 20 June 2018

3 Bea Cupin, ‘Despite Unanimous Senate ‘No’, Alvarez Insists on Joint Voting for Cha-Cha’ (Rappler, 17 January 2018)

https://www.rappler.com/nation/193907-house-speaker-alvarez-insists-joint-voting-charter-change-senate accessed

20 June 2018

dictator used constitutional change to duck term limits”

A good illustration of this deep mistrust occurred in 2015 Then House Speaker Sonny Belmonte

filed a bill proposing the amendment of the 1987 Constitution, specifically seeking to give Congress the

power to allow foreign ownership in particular industries (i.e education) There are certain industries

that are presently reserved to Filipinos only under the 1987 Constitution and some business groups

wanted to change this to maximize foreign direct investment in the country2 Notably, Belmonte was part of the ruling political party at that time and had the support of a few prominent business

organizations But the public was clearly still very sceptical about his attempt to amend the 1987

Constitution A prominent academic wrote an impassioned and scathing piece entitled, Gang Rape of

the Constitution, which accurately represented the sentiment of the people at that moment3 Proving

again that mere determinations from politicians and interest groups, no matter how well-thought and

presented, will not be credible enough for the general public

The fact is the public perception that charter change is still being used as a means by politicians

to further entrench themselves in power is very difficult to overcome This dim view is actually being

perpetuated by more recent attempts emanating from the House of Representatives such as Resolution

of Both Houses No.15 filed in the 17th Congress which removed term limits for lawmakers and

House Concurrent Resolution No.1 filed recently in the 18th Congress which extended the term of

office of the members of the House of Representative from three years to four years with a maximum

of three consecutive terms in office Both remain to be mere proposals, with little indication that they

can proceed any further in the amendment procedure

Arguably, this deep mistrust of the public is reflected in the results of two nationwide surveys

conducted in 2018 by the two most respected polling firms in the Philippines One was from Pulse

Asia Research showing that 64 per cent of respondents are not in favour of amending the 1987 Constitution4 The other was from Social Weather Station showing only 37 per cent of Filipinos support a radical revision of the charter to facilitate the shift to a federal system of government5

Obviously, opponents of constitutional reform have relied on these polling outcomes to prove their

point Pertinently however, these survey results have also been raised by some members of the Duterte

administration to justify the unreadiness of Filipinos to undertake charter change

Indeed, unless public sentiment changes dramatically in support of charter change, lawmakers

will always hesitate to openly verbalise support for amending or revising the 1987 Constitution Proponents will likely encounter extreme difficulty in mustering the right level of support because

1 Sofia Tomacruz, ‘Look Back: Past Charter Change Attempts and Why They Failed’ (Rappler, 17 January 2018)

https://www.rappler.com/newsbreak/flashback/193825-past-attempts-charter-change-philippines-failed> accessed 20

June 2018

2 For example, Article XVI, Section 11 (1) The ownership and management of mass media shall be limited to citizens

of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.

3 Joel Tabora, S.J., ‘Gang rape of the Constitution’ (Manila Times, 7 June 2015)

<http://www.manilatimes.net/gang-rape-of-the-constitution/189966/> accessed 20 June 2019

4 Rappler.com, Big Majority of Filipinos Against Charter Change – Pulse Asia, Rappler, May 02, 2018, at https://www.

rappler.com/nation/201571-survey-filipinos-charter-change-pulse-asia-march-2018.

5 Social Weather Stations, First Quarter 2018 Social Weather Survey: One of Four Pinoys Are Aware of the Federal

System of Government; 37% Support It, 34% Are Undecided, and 29% Oppose It, Social Weather Stations, Jun 28,

2018, at https://www.sws.org.ph/swsmain/artcldisppage/?artcsyscode=ART-20180628003935.