[OPINION] COVID or not, no charter change

Here we are again. The leaders of Congress such as House Speaker Lord Velasco and Senators Bong Go, Bato Dela Rosa, and Francis Tolentino have publicly expressed their interest in starting discussions on the prospects of charter change – in a country that recently recorded a total of more than 500,000 cases and soon to be over 10,000 deaths due to COVID-19.

Most vocal is Speaker Velasco, invoking the COVID-19 pandemic as the ultimate justification for allowing amendments to the Constitution at this time. “Foreign investment plays a crucial role in the Philippine economy by supporting domestic jobs and the creation of physical and knowledge capital across a range of industries. The need to attract foreign capital is critical to support our economy’s recovery from COVID-19,” said Velasco.

Likewise, most of those who have stood against such a move have cited the pandemic as the very reason for the untimeliness of charter change.

However, we argue that the discourse must not only stay on COVID-19. The proposed charter change has long-reaching effects that may be irreversible and that may haunt us even after the pandemic has ceased.

That is why instead of focusing on the pandemic – which by the way still persists and will continue to disrupt our lives and our country’s economy, if not acted upon competently – as the two-sided coin that could either justify or negate charter change as the nation’s endeavor in these times, this article presents a no-nonsense guide on why charter change must not be supported at this time, besides the pandemic.

First, charter change is charter change

Members of the House led by Speaker Velasco have been vocal about the purpose of proposed charter change: to modify the nationalization requirements of the Constitution on land, natural resources, public utilities, educational institutions, media, and advertising, as an intervention to allow substantially more foreign investment for the country’s economic recovery.

Without going into the actual economic implications of the nationalization requirements that have been branded as "too restrictive" by economists – but notably has not gained consensus in the field – it is sufficient for us and every Filipino to understand that charter change is charter change. There exists no constitutional process or mandate for Congress acting as a Constituent Assembly, a Constitutional Convention properly called for, or through initiative 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, we are left at the mercy of their words and promises. Reliance on these legally hollow pronouncements will prevent us from holding Congress into account, should it decide to run amok.

Once the process of charter change commences, the possibility of the proposed changes going out of our control is just around the corner.

Second, Congress has two chambers: the House of Representatives and the Senate

It is most basic in our constitutional law that the Legislative Branch or Congress is composed of the House of Representatives and the Senate. The Constitution itself reposes the immense power of proposing charter change to Congress – not only to either the House or Senate. Of particular interest in the charter change currently proposed is the first of the 3 modes: through Constituent Assembly. The 1987 Constitution states, “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 […]”

Early in the most recent attempt to modify the Constitution, it has already earned the ire of senators and members of the House alike, because of the statements of Rep. Alfredo Garbin, Jr, the Chair of the House Committee on Constitutional Amendments, that the said Committee itself has already constituted, if not already automatically equivalent, as the Constituent Assembly contemplated in the Constitution.

Garbin’s assertion sadly can only be seen as either gross ignorance of the law and Constitution or gross arrogance over such law to which he swore to uphold. The Constitution states that only Congress has the authority to propose changes; not merely the House, not merely the Senate, and most importantly not some Committee. Let this be the forewarning that we and our other elected lawmakers need to be extremely vigilant over such a process.

Third, this charter change is the last straw of the Duterte administration

Federalism was one of the campaign promises of President Duterte, the momentum of which as we have seen by now has already lost. From the appointment of a 19-member consultative committee to review the 1987 Constitution led by former Chief Justice Reynato Puno to the eventual waning and silence in the past year, we see a resuscitation of any of what is left of such previous effort in the charter change today.

In whatever way we look at it, this charter change is a last-minute attempt to, at the very least, make true of the Duterte-popularized saying, “Change is coming.” In so doing, even the DILG has been the de facto government agency responsible for laying the groundwork and public consultations on federalism and charter change. Its most recent "achievement" in fact is the over 500,000 signatures gathered nationwide that supposedly supports the amendment of the economic provisions – which was obviously and oddly done during the pandemic.

The failure of the Duterte administration to institutionalize long-term reforms, such as the change toward federalism, is a symptom of a public trust deficit – or the Filipino people simply are just not yet ready to commit to said reform. The administration, in its track record for the past 5 years, has lost any credibility to push for a change that is as drastic as charter change.

Further, this charter change is a salvage of what political muscle is left with the Duterte administration. The ability of the administration to gather political support for this admittedly grand move would then dictate how strong Duterte’s grip is to his remaining political agenda as well as to the looming election and opportunity for transfer of power. More than anything else, it is a litmus test of power.

We should not allow charter change to be the saving grace of this administration – or any other administration.

Lastly, charter change and constitutional processes are the Filipinos' choice, after all

In charter change, it is important to know that Congress merely proposes amendments or revisions. Such proposed amendments that acquire the required votes will then be subjected to the ratification of the Filipino people. According to the Constitution, “Any amendment to, or revision of, this Constitution […] shall be valid when ratified by a majority of the votes cast in a plebiscite[.]” Votes in the said plebiscite will determine whether we agree to the new terms of our "social contract" or not.

As Filipino citizens, the sheer grandiosity of the political bureaucracy that revolves around charter change would tend to make us distant to the very process itself. Our affirmations and oppositions, or support and sentiments, may be included in the record or minutes of congressional deliberations, but may not be necessarily heard. But one thing is sacredly reserved to the people: that whatever Congress as Constituent Assembly proposes, only we can accept or reject.

To end, this is a simple and straightforward discussion of why, when asked whether we as citizens are in favor of the charter change currently pushed by the administration, we should not merely settle for an answer and a reliance to the COVID-19 pandemic, such as “Ayoko ng Cha-Cha. COVID pa kasi eh.” We should not accept a justification or even resort to the same reason that the government’s incompetence itself has allowed to perpetuate.

This is a contribution to our consistent belief that all Filipinos are capable of understanding our Constitution, the values, rights, and history that it represents, and of knowing when and how to resist an attack to our democracy when we see it coming. – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government.

Jayvy R. Gamboa is a student at the University of the Philippines College of Law and an advocate of youth formation.