Unconstitutional Moments: The 2024 Attempts to Change the Philippine Constitution

No attempt to amend the 1987 Philippine Constitution has yet succeeded, but renewed efforts to relax constitutional restrictions on foreign investments have resurfaced in recent years. Once non-committal, President Ferdinand "Bongbong" Marcos Jr. has endorsed the initiative, sparking fears that any amendments could pave the way for more profound political reforms, reminiscent of the constitutional changes that cemented his father's dictatorial regime. However, deep public distrust, questionable necessity of the proposed reforms, and significant legal challenges suggest that the time is not ripe for Charter Change – writes Paolo Tamase

The Latest Attempts at Charter Change

After standing unamended for 37 years, is the 1987 Philippine Constitution close to a formal change? Once noncommittal, President Ferdinand “Bongbong” Marcos Jr. has recently blessed the efforts of his allies to ease constitutional restrictions to foreign investment in public utilities, higher education, and advertising. Meanwhile, his opponents fear that these moves would only test the waters for bigger political changes to keep him in power. After all, Charter Change (“Cha-cha”) in 1973 legitimized the dictatorship of his father, President Ferdinand Marcos Sr.

Under Article XVII of the Constitution, proposed changes may be initiated through: (1) a constitutional convention, a one-off assembly of specially elected delegates; (2) via Congress, the bicameral national legislature; and (3) a “People’s Initiative,” where citizens directly propose minor amendments to the Constitution through a signature petition.

Between late 2023 and 2024, the second and third modes entered the national consciousness. To maximize their chances of success, Marcos Jr.’s allies have publicly spearheaded a formal initiative in Congress for economic liberalization while surreptitiously launching a People’s Initiative for procedural revisions to facilitate easier amendment of the Constitution. The People’s Initiative has stalled, undermined by revelations that, far from being a grassroots effort, it was actually a well-funded operation traceable to congressional leaders and built on tactics like vote-buying. In contrast, the institutional route has been more successful, with the House of Representatives overwhelmingly approving by a 288-8-2 vote the proposed changes to the said investment restrictions – a major breakthrough rarely achieved in past attempts at constitutional reform.

Those proposals await action from the Senate, which has traditionally opposed Cha-cha. Unlike the House of Representatives whose members rely on presidential favor for local district funding, the Senate has a national constituency and is itself a staging ground of presidential ambitions – 10 of the country’s 17 presidents previously served as senators, including Marcos Jr. Further, many previous Cha-cha attempts involved the conversion of the bicameral Congress to a unicameral parliament with district representation, which would effectively erase the Senate. Despite its independent streak, only two of the 24 senators are in the minority and the possibility of Cha-cha passing even the upper chamber of Congress is higher than in previous attempts. In any event, mindful that the Senate’s non-cooperation doomed a 2023 Cha-cha effort, House leaders have signaled their readiness to pursue the changes alone. Unlike in the past, widely respected non-partisan figures have expressed a “qualified” openness to Congress’s “Economic Cha-cha.” Yet, despite Cha-cha’s best prospects in years, there are roadblocks to its final approval via referendum. Deep distrust in Cha-cha, unresolved questions on the legality of the congressional procedure, and the perceived unnecessariness of the proposals all contribute to the absence of a constitutional moment necessary to propel them past the finish line.

Popular Distrust

Although the Constitution has withstood many attempts at formal change (versus informal change via controlling interpretation), it has been the continuous target of a battering ram since 2016 with the election of President Rodrigo Duterte. Exploiting the weakness of the Philippine party system, Duterte built a populist coalition against drug users and economic oligarchs. For him, the Constitution was a convenient boogeyman: he correlated its liberal priorities and civil rights protections with the inaccessibility of Philippine economic and political structures that are dominated by a few families, the concentration of development in the capital, and the proliferation of crime. Duterte’s solution for the latter problem was to ignore the Constitution, presiding over a “war against drugs” that saw the extrajudicial killings of anywhere from 6,000 to 30,000 civilians. His remedy for the rest was to change the Constitution, advocating a shift to a federal system.

Despite ending his term with high popularity ratings, Duterte left power without carrying his federalism promise to fruition. Given his relentless attack on the Constitution and waning memories of the People Power Revolution – which toppled Marcos Sr. in 1986 and ushered in the present basic law – Duterte’s failure was surprising. Possible explanations range from his inability to articulate what federalism and constitutional reform entailed; the competing ambitions of institutions, including the Senate’s concern that any political change would result in its abolition; and Duterte’s loss of credibility. While Duterte was perceived as successful in cracking down on crime, he was unable to end oligarchy and reform central government, as economic and political elites were simply replaced by his allies and those from his hometown.

Another explanation offered by Prof. Maria Ela L. Atienza combines Filipinos’ distrust of politicians and the political process, the absence of an ideology-based party system capable of articulating a coherent vision for the Constitution, and the general population’s lack of knowledge of the Constitution. These factors appear consistent with other theories that attribute the longevity of the Constitution to the history of Cha-cha. Marcos Sr. replaced the 1935 Constitution and frequently amended the 1973 Constitution to maintain power. Even after the fall of the Marcos dictatorship, proposed changes to the 1987 Constitution often sought to consolidate power in certain personalities through the removal of term limits. Any proposed economic reform, in these instances, was a subterfuge for term extensions.

The marketing of the People’s Initiative as a bottom-up movement collapsed when the campaign rolled out expensive television advertisements to promote lifting investment restrictions . . .

The most recent Cha-cha attempts have done nothing to assuage this distrust. The marketing of the People’s Initiative as a bottom-up movement collapsed when the campaign rolled out expensive television advertisements to promote lifting investment restrictions, which raised questions about who was funding the initiative. A Senate Inquiry would later force the initiative’s leader to admit that they were supported by Rep. Martin Romualdez, the House Speaker and Marcos Jr.’s first cousin. Further, the stated economic purpose did not match the formal content of the proposal, which primarily sought to change Article XVII of the Constitution (on Amendments or Revisions) to make it easier to propose Cha-cha. These revelations fed into the perception that the “People’s Initiative” was a ploy to consolidate and extend power beyond the limits currently set by the Constitution.

For these reasons, support for constitutional change has been weak despite the persistence of Duterte’s and Marcos Jr.’s popularity. A recent nationwide survey by Pulse Asia’s showed that 88 per cent of respondents opposed present efforts to change the Constitution. More startlingly, 74 per cent said that the Constitution should not even be amended at any other time, up from 31 per cent just the previous year. This sentiment seems to have emboldened the Senate to resist the House’s pressure to join its Cha-cha push. In March 2024, Sen. Joel Villanueva, an ally of Marcos Jr., admitted that he was inclined to vote against the proposals at the moment, citing the survey.

Substantive and Procedural Legal Ambiguities

Both the People’s Initiative and current congressional efforts labor under legal uncertainties, which incentivize Cha-cha opponents to kill the proposals before they reach polling booths or at least delegitimize them to the electorate. Legal challenges before the Supreme Court are certain.

Consider the history of People’s Initiatives. Theoretically, Cha-cha is a constituent political question which, in their American mold, Philippine courts would hesitate to strike down on arguable grounds lest it preempt the expression of the democratic will. Nevertheless, every advanced attempt to change the 1987 Constitution via a People’s Initiative has died in the Supreme Court. In the 1997 case of Santiago v. Commission on Elections, the Court held, among other findings, that Article XVII, Section 2 mandated implementing legislation to facilitate People’s Initiatives. The Initiative and Referendum Act of 1997 (Republic Act No. 6735) was deemed inadequately drafted to enable the exercise of this power. In the 2006 case of Lambino v. Commission on Elections, the Court declined to revisit the Santiago ruling. The Court found as a preliminary matter that the petition, proposing a shift to a unicameral parliamentary system, would have exceeded the constitutional scope for People’s Initiatives, which allows only qualitatively and quantitatively minor changes (“amendments” rather than “revisions”). While these cases were decided on narrow margins, they set a high bar for proponents who hope to reargue the viability of the ongoing People’s Initiative.

Two key questions emerging from the ambiguity of Article XVII are how the houses of Congress must meet and vote on Cha-cha proposals.

The present congressional efforts are no less safe. Two key questions emerging from the ambiguity of Article XVII are how the houses of Congress must meet and vote on Cha-cha proposals. The text of Article XVII refers to a singular “Congress,” which House proponents cite to argue that three-fourths of the House and Senate together would suffice to pass proposed changes. This scheme would dilute the Senate’s 24 votes in the House, with its 316 seats, and allow the House to pass proposals on its own. Hence, the Senate’s view and the prevailing opinion among scholars is that the houses must vote separately due to bicameralism, the Constitution’s rigid design, and the illogical consequences of the House’s view, including the fact that changing the Constitution would be easier than passing ordinary legislation, which must pass both houses separately.

In contrast, how Congress must “meet” has split experts and scholars. On the one hand, former Justice Antonio Carpio, and former Chief Justice Hilario Davide and the late Joaquin Bernas –two “framers” or members of the 1986 Constitutional Commission that drafted the present Charter – believe that the textual silence of Article XVII allows the houses to consider proposed changes independently and without having to meet as one body. On the other hand, former Justice Vicente Mendoza has argued for a joint meeting where Senators and Representatives can debate and deliberate as one plenary body but vote separately. Justice Mendoza bases his position on the fact that when Congress proposes changes to the Constitution, it does so in a constituent capacity that is different from its typical legislative function.

Justice Mendoza’s view is supported by the practice of calling a Constituent Assembly under the 1935 Constitution, which (as amended) also had a bicameral Congress. The framers referred to this “Constituent Assembly” at least 26 times in their deliberations on the present Charter, indicating that they did contemplate such a special gathering. Also, Article XVII as ratified was originally written for a unicameral Congress. When the framers decided late in the drafting process to propose a bicameral legislature, certain necessary adjustments to the draft text were mistakenly omitted, including to Article XVII. The constitution-making deliberations confirm this: in response to the observation of Commissioner Regalado that Article XVII, Sections 1 and 2 are “premised on … a unicameral body,” Commissioner Suarez responded that if the framers were to propose a bicameral Congress (as they eventually did), then they would “include the words in joint session assembled” (R.C.C. No. 25, July 8, 1986).

The present Congress has taken the first view, bypassing what would have been a more rigorous and deliberative exercise than the speedy three plenary sessions it took the House to debate Economic Cha-cha. If the proposals do pass Congress, it raises the question of whether it followed constitutional procedure, setting them up for a challenge in the Supreme Court.

Lack of Necessity

Economic Cha-Cha has been argued as necessary to “open up” the economy and solve an education crisis. That argument has become less compelling given developments confirming that Congress already has the tools to do both. In 2019, Congress opened schoolhouse gates to significant foreign investment in higher education by passing the Transnational Higher Education Act (Republic Act No. 11448). In 2022, Congress redefined “public utilities” through critical amendments to the Public Service Act (Republic Act No. 11659), effectively allowing foreign investments to industries like telecommunications and transportation. Resource persons invited by the Senate and the House repeatedly opined that these and other investment liberalization laws have yet to be implemented fully, making Cha-cha premature if not unnecessary.

These show that in critical economic reforms, the ball is indeed with Congress, except in a different court – one which the Constitution precisely intended to be a forum for meaningful legislative policy but has been underutilized as such.

An Unconstitutional Moment

The public’s skepticism towards present Cha-cha initiatives, their questionable constitutionality, and the lack of a felt necessity all evince the absence of a constitutional moment for Cha-cha. By itself, this may be enough for Cha-cha opponents to simply let the proposals be submitted to the People for their disapproval. But perhaps aware of the realities of Philippine politics – with dynastic and religious command voting, rampant vote-buying and selling, and effective disinformation – opponents are unlikely to leave things to chance and the well-oiled political machinery of Cha-cha’s main backers. These realities may also be the reason why proponents remain enthusiastic about Cha-cha despite its deep unpopularity, expecting that the people will either warm up to or simply acquiesce to the proposals after a well-funded campaign.

“Acquiescence” may ultimately sum up the average Filipino’s feelings towards not just Cha-cha, but the Constitution itself.

“Acquiescence” may ultimately sum up the average Filipino’s feelings towards not just Cha-cha, but the Constitution itself. As the Constitution was a product of revolution and designed to be a bulwark against dictatorships, it was sacrilegious for most of the last 37 years to even contemplate changing it. That attitude has buried legitimate questions about flaws in its economic and political design, such as its failure to prevent political dynasties. Even as the People Power generations passed, Filipinos continue to view the Constitution as a given, as with many other things in their political system.

Without a trusted forum for discussing legitimate concerns about the Charter, there is unlikely to be any constitutional moment that can propel not just current but any proposals to reform the basic law, unless these are strong-armed through by proponents at the risk of illegitimacy. Defenders of the present Constitution may celebrate this today. But in the final analysis, the absence of an informed constitutional discourse delegitimizes the Charter by risking its obsolescence and making “the People” indifferent to it. As Philippine history warns, this nonchalance can enable tyrants to ignore constitutional limits or repeal constitutions entirely.

Paolo Tamase is an Assistant Professor in the University of the Philippines College of Law.

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Suggested citation: Paolo Tamase, ‘Unconstitutional Moments: The 2024 Attempts to Change the Philippine Constitution’, ConstitutionNet, International IDEA, 29 April 2024, https://constitutionnet.org/news/voices/unconstitutional-moments-2024-attempts-change-philippine-constitution

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