Sunday, November 29, 2020
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Dance Macabre

The conversation anent charter change has taken a turn for the serious and you can tell by the way the newspapers are reporting it. When Presidents like Fidel Ramos, Joseph Estrada and Gloria Macapagal Arroyo were suggesting overhauling the Constitution, reporters and their editors conflated their efforts into a two-syllable dance: cha-cha. It was as if the folks behind the news were trivializing charter change with some catchy alliteration, and during those administrations, indeed, the subject never gained traction. With Rodrigo Duterte, however, the tune has changed. Though you may hear it now and then, cha-cha has followed the lambada to the retirement home for Latin dances.  This President has no time for the ballroom.

It is about time the subject is treated with respect.  That begins with using the correct terms. What President Duterte has in mind is not some cosmetic procedure on the Charter, which is what “change” suggests. A change, under the Constitution, is either a revision or an amendment. These are distinctly different terms regardless of what any thesaurus might say. A revision is a change which alters a basic principle embodied in the Constitution. In contrast, an amendment is a change which adds, reduces or deletes without altering the basic principle involved. A revision entails changing several provisions; an amendment generally involves only a specific provision that is the intent of the amendment.

Concretely, the difference between a revision and an amendment can be described this way: changing the term limit of Presidents to allow them to run for two terms instead of the single term now allowed is an amendment; however, changing from a presidential system to a parliamentary system is a revision. Changing the term limits of members of the House of Representatives and the Senate is an amendment; changing from a bicameral Congress to a unicameral legislature is a revision. With that in mind, changing from a unitary government to a federal system is a revision.

Does this mean that we can peacefully go to sleep tonight knowing that the President intends to revise our Constitution? Does it warm the cockles of your heart to be armed with this particular bit of knowledge? Maybe it does—good for you—but it shouldn’t. What the President is proposing goes far beyond revision because what is actually afoot is a scheme to replace the Constitution with a completely different one.

This has happened only twice before during my lifetime.  The first was in 1973 when Ferdinand Marcos replaced the 1935 Constitution with one of his own designing. When the Supreme Court decided to validate this chimera in the epic case of Javellana v. Executive Secretary, with perhaps the most infamous dispositive portion in all of Philippine jurisprudence—“This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.”—it practically doomed generations of Filipinos to poverty and human rights abuses.

The second instance was in 1986 when Corazon Cojuangco Aquino replaced Marcos in the aftermath of the People Power Revolution. Her first act was to promulgate a Freedom Constitution to replace her predecessors, but because she was the anti-Marcos, she was not content to let this Freedom Constitution be—she, instead, gathered the brightest minds of the country and tasked them to draft a new Charter. The end result is the 1987 Constitution we all swear by today.

As you can see, the two Constitutions I have mentioned were products of a revolution. Marcos forced the 1973 Constitution down our parents’ throats after he declared martial law, arrogated executive, legislative and judicial powers to himself and pronounced himself dictator. Cory Aquino promulgated hers after taking over Malacañang. Rodrigo Duterte is trying to do the same thing—replacing a flawed but perfectly functioning Charter—with one of his own design without actually going through a revolution.

And why should he do that?  The answer is simplicity itself. As the incumbent, he cannot, after all, launch a revolution against himself. To do so would be illogical, impractical and all sorts of stupid. Corazon Aquino had a legitimate reason to revolt against and be revolted by Ferdinand Marcos but Marcos had no one to launch a revolution against.  Hence, martial law; thence, a new Constitution. The historical parallels are not lost on those who view with distrust President Duterte’s placing Mindanao under martial rule. To top it all off, he is calling for a brand-new Constitution.

Last week, the President announced the appointment of 18 members, which includes such boldface names as Associate Justices Antonio Nachura and Bienvenido Reyes and former Senate President Aquilino Pimentel, to be led by former Chief Justice Reynato Puno. I went over the presidential list and I have to say, about the rest of them, who are these people? The list is top-heavy with lawyers and graduates of schools in Manila, but other than that, well, all I’m prepared to say is that at the end of the day, it’s the President’s list.

I am not liking this choreography. G

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