[OPINION] The First Mode conundrum

Despite the hype by some of our lawmakers, there is no fourth mode for amending or revising the 1987 Constitution.

While Fr. Joaquin Bernas, S.J. did mention the words “fourth mode” in his columns, it seems these lawmakers have misappropriated his thoughts behind this proposition. It is preposterous to even suggest that an esteemed constitutionalist like Fr. Bernas would ever recommend something not sanctioned by the Constitution.

To be clear then, the 1987 Constitution prescribed only three modes to amend or revise it.  As per Article XVII, they are the following:

• By Congress exercising its constituent power
• Through a constitutional convention
• Via People’s Initiative

Let us start with the second mode, popularly known as Con-Con. The last one we had was the 1971 Constitutional Convention which drafted the 1973 Constitution. Interestingly, Martial Law was declared during the constitution drafting process. This intervening factor gave rise to a constitutional dictatorship.

The Con-Con mode can be initiated in two ways. First, Congress can call for the election of delegates to a Con-Con through a joint resolution. The details of how this call will be implemented must be contained in that resolution. Or, Congress can call for a referendum on whether to pursue a Con-Con or not. It will then be the voters who will make the decision.

As for the third mode, the 1987 Constitution clearly commands Congress to enact a law “for the implementation of the exercise of this right.” Effectively, there is no law yet, hence people’s initiative is not an available option. Notably, Sen. Koko Pimentel recently filed Senate Bill No. 2595 or the proposed People’s Initiative and Referendum Act of 2024.

However, the 1987 Constitution is silent on how Congress can exercise its constituent power. The only thing certain about the first mode is that the Senate and the House of Representatives vote separately. This is just common sense given the bicameral structure of Congress. But also, the journal records of the 1986 Constitutional Commission would bear out the intention of the framers themselves which is separate voting.

The two chambers of Congress can, if they choose to do so, come together for ceremonial purposes. Notably, the specifics of how each of the chambers would commence with the work are to be determined by Congress itself. In fact, the Bernas way is just one suggestion on how Congress can operationalize the first mode.  

According to Fr. Bernas, “both houses might decide to do it the way they pass ordinary legislation – that is, as they are where they are but voting separately by a three-fourths majority, and only coming together, the way they do in ordinary legislation, to reconcile differences.”

This means amendment or revision proposals are to be treated like a regular bill where one chamber considers it first and thereafter transmits it to the other chamber. This process accounts for possible differences between the Senate and the House of Representatives and hence, some kind of “bicam mechanism” is needed at the end.  

It is worth mentioning as well that Fr. Bernas actually wrote: “What I would call the fourth mode is Charter change through Congress doing it as two houses in separate sessions. The two houses can support a “surgical” mode of change focused only on one amendment.”

Therefore, the Bernas way may only be viable in a very particular context. Specifically, when the proposed amendment is simple and straightforward. Consequently, this option may not be appropriate when amendment proposals are complex and controversial like the ones contained in both RBH #6 and 7.

Another way to operationalize the first mode is the one currently being employed, which is a slight variation of the Bernas way. It entails the leaders of both chambers agreeing to the set of amendment proposals to be tackled, i.e. RBH #6 and #7. In theory, the Senate President and the House Speaker could arrive at an accord on their own volition. But in this instance, it was President Bongbong Marcos who “facilitated” this concerted action.

The bicameral structure of Congress means that each chamber proceeds with the work at its own pace. And neither can demand the other to do any different. But they can certainly synchronize their efforts, if they choose to do so. Notably, the House of Representatives has already passed RBH #7. And so, the Senate is now on the clock with regards to RBH #6. 

If ereject RBH # 6, then Economic Cha-Cha is dead. If they pass it, then both chambers will proceed to the next step which is to finalize the joint resolution to be endorsed to the Comelec to schedule the plebiscite. Crucially, the plebiscite “shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.” (See Article XVII, Section 4)   

Pertinently, former president Rodrigo Duterte also tried to operationalize the first mode using a different approach. He first organized a technical working group to draft a federal constitution. The Consultative Committee headed by former chief justice Reynato Puno produced the Bayanihan Federalism Draft Constitution.

The plan was for then-president Duterte to endorse this to Congress in his 2018 State of the Nation Address with an instruction to consider it as a replacement to the 1987 Constitution. This did not eventuate, of course. Duterte pulled the plug, saying Filipinos were not ready to shift to a federal system of government.

At this point, the absence of unanimity amongst lawmakers on how to proceed with the first mode to amend or revise the 1987 Constitution seems grave enough to press pause. Continuing with this uncertainty means the Supreme Court will likely determine the fate of RBH #6 and #7. And that does not bode well for constitutional reform.  

Constitutional reform is an innately political exercise. And therefore, the entire process should accommodate debate of opposing views, the deliberation of ideas and values, and participatory consensus-building. It cannot be determined solely by a decision made behind closed doors, by non-elected jurists, and guided only by a narrow and strictly legal perspective. 

Clearly, lawmakers must first devise the rules to govern the operationalization of the first mode. The leaders of both chambers should initiate a joint effort to craft a common set of steps to follow when Congress exercises its constituent power. Crucially, the rules must stipulate the principles that would guide the conduct of the constitutional drafting process itself. 

Economic Cha-Cha has reached the farthest point in the process than any of the previous attempts at amending the 1987 Constitution, despite the discord surrounding the first mode. But the toxic partisanship amongst lawmakers and the palpable campaign to railroad the proceedings are signs that carrying on with such a handicap would actually be a disservice to the country. – Rappler.com

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• [OPINION] RBH #6 and Con-Ass

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