Amend the Constitution?

by Manuel B. Quintal, Esq.

| Photo courtesy of YouTube/Ella Dayao

There comes a time in the existence of a country that its highest law or constitution needs to be changed. It is easy to change it under a government that is dictatorial or authoritarian. But in a country with a democratically-elected government, like the Philippines, the process of amending the constitution involves more people and steps.

In the academe, we used to distinguish “amendment” from “revision. Amendment referred to a change in a part or parts of the constitution, whereas revision is the replacement of the entire constitution. It must be noted though that, given the fact that ideas on government did not actually come out of nothing and, therefore, not entirely original, a constitution is not really entirely different from the one it purportedly wholly replaces. It is more appropriate to say that the ideas in a prior constitution are re-stated or stated in different ways in the constitution that is deemed a replacement of the old.

The Philippines Supreme Court in 1981 decided that amendment includes revision. For our purpose and unless otherwise indicated, we shall use the term amendment to include revision. Whether it is an amendment or revision, a change or changes occur.

When is the proper time to change the constitution? Anytime the people wants to maybe the best answer. If this will be case, however, there will be no stability in government. What the people wants may only be dictated by temporary and fleeting passions. Should governments and officials be removable or replaceable anytime the people want to? Should governments and officials’ time in power be extended anytime the people wants to by changing the constitution, previously approved by the very same people, or of a prior generation of people?

By the way, why and how we even come to this idea of a constitution and amendments? Political philosophers theorized that before human society as we know it came into being, every man lived on and for his own. To use an age-old and worn-out cliché, it was “an eye for an eye, tooth for a tooth” kind of lifestyle. Lex talionis (law of retaliation) was the governing law. You got what you could by whatever means you would employ. The strong, physically and mentally, got what he wanted. Just picture the caricature of a man with a club in his right hand and his left hand pulling a woman he liked by her hair to have a clearer vision of that lifestyle. Needless to state, there was endemic chaos. There were no man-made laws to regulate human conduct and no entity (individual or group) to enforce any. Theorists imagined that the people decided to give up their natural freedoms in favor a government or ruler that had absolute powers (under the so-called divine right theory) or a government that that they could change at will. Whether these imagined scenarios really happened or not, it had been used to justify changes in governments. From these theories flow the idea that whatever kind of government the people ceded their freedoms or part of it to, that government was expected to advance the people’s benefit – often referred to as the general welfare or the common good or benefit of the majority.

All countries today are governed by representatives chosen by the people through an electoral process. Whether that electoral process ensures that that it really reflects the real choice of the people is another matter. That the people surrendered some of their natural freedoms may be covered by a series of laws that evolved through the years, as is the case with most common law countries, Written laws clearly defined them. Most countries today have one law that is above all other laws, and it is called the constitution, or fundamental law, or highest law.

In the constitution, the people defined the extent of powers their government will have, how long its officials will exercise them, and what rights the people have reserved for them which their government and officials may not take away. In other words, the people retained some powers for themselves. The United States Constitution, Amendment X, expresses this idea to wit: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Philippines 1987 Constitution, in Article II, Section 1 declares that “all government authority emanates from them.” The idea that the people reserved powers to themselves and the expectation that their government was formed to promote the general welfare are the philosophical basis of the people’s right to revolution.

We consider that constitution as the statement of the wishes and aspirations of the people that their government are supposed to promote and help attain, in exchange for the individual freedoms they have surrendered to the government. Government leaders, as representatives, not masters, are and must be constantly reminded that they are there to promote the general welfare, not their own. The business of government is not for personal profit but for the common good.

“The constitution is designed to promote stability in the country. It is not designed to change with the fluctuations of the people’s emotions.”

How often then should the constitution be amended? It is the generally accepted view that a constitution must be rigid and not easily changed, as compared to lesser laws. The constitution is designed to promote stability in the country. It is not designed to change with the fluctuations of the people’s emotions. Lesser laws, ordinances, and other rules which government leaders and lawmakers may adopt every now and then and change at will, can deal with those fluctuations of emotions.

The frequency or the number of times a constitution is amended reflects the stability of the system of government of the country and the perception of the people as to what may or may not justify such amendment. The United States of America, the oldest example of a country with the most stable representative government with a written constitution, has amended its constitution twenty-seven (27) times, the last amendment being in 1992. These amendments refer only to particular parts of the original constitution that became effective in 1788. Twenty-seven (27) amendments of particular parts of the constitution within a period of about two hundred twenty six (226) years. The first ten amendments refer to the Bill of Rights. The original constitutional provision giving the president four years term of office, without limitation to reelection, was only amended in 1951, limiting the term of office to two four-year terms. Despite that original provision, no president ever served more than two terms, except Franklin D. Roosevelt during the Second World War era. The bicameral Congress and federal set-up, have remained as it were when created in the original provisions of the constitution. The constitution itself does not provide for the number of Supreme Court Justices. Congress fixed the number to nine justices to serve for life. Neither the cataclysmic world and regional wars in which the country were involved, the natural disasters, nor the age of electronic surveillance and drones were considered sufficient to justify an amendment in the constitution.

Comparatively, former colonies that became independent after the Second World War have had unstable governments and adopted several versions of constitutions dictated by the governments in power. The changes may be partly due to the fact that the constitutions are long and had detailed provisions that tended to become too restrictive, irrelevant, and deterrents to the evolutionary demands of economic, social, and political developments. Note that every provision of the constitution is a limitation on freedom. The constitutions were apparently framed more to address demands and needs at the time they were written rather than what lies beyond, foreseen or unforeseen. For fear of excessive government authority and abuse and misuse of authority, the constitutions have unwittingly included limitations on the leaders’ ability to address future events and circumstances to achieve what the government is expected to do for the people. This is not exactly an error of judgment. It is an indication of the people’s mistrust of government and leaders they have put or will put in positions of authority, an attitude borne from a perception that is not entirely without basis in fact. The perception resulted from history and their experiences. Leaders with autocratic tendencies, often with the support of the military and a manipulated minority, suspend constitutions in the name of national survival and national welfare.

Let us make a a passing review of how the Philippines constitutions has undergone transformations. The Philippines have had several constitutions since 1935. The 1935 constitution, which was made at the time when the Philippines was still a colony of the United States and patterned after the American constitution, was amended three (3) times, one of which provided that the President and the Vice-President could be eligible for a second four-year term. The 1973 constitution, originally drafted by a freely-constituted constitutional convention in 1971 but finished and became effective through the auspices of the dictatorial government functioning through martial law, was amended four (4) times within ten (10) years until 1981. It changed the form of system of government from a presidential type to a quasi-parliamentary, with a very powerful president.

The present constitution, effective since 1987, has not had any amendments. Since then, there have been people or groups of people who called or are calling for amendments, meaning changes to particular parts of the constitution, to address specific concerns, including foreign investments, tax sharing, among others. Others call for and are still calling for a change to a federal system.

When and how many times the constitution is to be amended certainly depends on the people. In a representative democracy, like the Philippines, the right to propose amendments lies with the chosen representatives. This is not to say, however, that the people as a group cannot make such proposals. The boisterous few does not necessarily represent the clamor of the people. A survey or poll is not always a credible way to measure the real clamor of the people. They can be manipulated to support the self-centered designs of a limited few. Though statistics of today may no longer be the highest form of lies that it was once considered to be, the manner in which it is conducted will affect the credibility of its result. One must look to the conductor, the sponsor, the size or number of the people involved, and the geographical location covered. Nonetheless, there is always a degree of error. The background and ambitions of individual political leaders are factors that must be considered to determine whether their proposals are more for their personal interests rather than that of the majority of the people. There is certainly no standard carved in stone upon which to determine when a constitution may be amended. Necessity will dictate when it should happen.

“Let us only hope that the people, the electorate, has learned enough to discern whether necessity truly exists — one that will benefit the general welfare and one that will justify whether to amend or not to amend the constitution. … “The amendments changed the rules, but did they change the conduct of the governors and the governed?”

It is reasonable to believe that the framers of the constitution did not intend it to hinder the development of the country and its people. The people ultimately decide on what and when amendments should be made must be watchful of individuals or groups who propose amendments. No limitations, legal, moral, or otherwise, should be made on the right of leaders or groups to propose amendments. The highest officials of government have equal rights as any other citizen to propose amendments and none may be castigated unreasonably for doing so. Let the proposals be tested in the marketplace of ideas to determine its worthiness. However, the constitution must not be amended every so often that it ceases to be the steady and lasting guidepost of the framework of government, the conduct of our officials, and our behavior as a people. Amendments are bound to happen.

Let us only hope that the people, the electorate, has learned enough to discern whether necessity truly exists — one that will benefit the general welfare and one that will justify whether to amend or not to amend the constitution. Make the people look back, find out and see whether the previous amendments to the constitution in fact promoted what they were intended to promote. The amendments changed the rules, but did they change the conduct of the governors and the governed?

ABOUT THE AUTHOR: Manuel B. Quintal, ESQ., practices law in New York since 1989. He is active in the community as a member, an officer or a legal adviser of various professional, business, and not-for-profit organizations. He was a columnist of Newstar Philippines, an English language weekly newspaper published in New York, from 2006-2009. He was Executive Editor of International Tribune, an English language weekly newspaper for the Asian community, based in New York, from 2010 to 2012. He is admitted to practice law in the Philippines and New York State. He has graduate degrees in Political Science and an LL.M. major in International Law.

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