Some thoughts on Charter Change. The first is that amending constitutions should be a natural, expected, tool for fine-tuning the operating manual of the state. One big problem of the present constitution is that amending it is practically impossible. 
This means that any attempt to amend it becomes a tension-filled and mistrust-provoking exercise. Increasingly elaborate schemes get hatched and become self-sabotaging which makes the next round poisoned from the start.
This is because the only really acceptable method as far as the public is concerned, an elected convention, is the least attractive to those most interested in proposing amendments. Conventions are time-consuming and worse, for practical politicians, unpredictable.
This highlights the fundamental difference between organized political groups wanting charter change and the public: what public opinion time and again has defined as the parameters that should confine charter change, aren't the changes professional politicians want.
These would be: retain national elections, have a head of state and government directly elected by the people, retain a bicameral legislature with a nationally-elected upper house, and maintain a republican system. This has no appeal to political groups who precisely want...
...to abolish the presidential system, are against bicameralism, and want parliamentarism instead of the presidential system. No to mention Federalism which is not incompatible with bicameral presidential republicanism but here, is usually made a take-it-or-leave it package deal.
So this leave otherwise sincere though highly theoretical academicians who are interested in constitutional change in a quandary. They will never get to run for an elected convention, so they gravitate towards political groups that are willing to use them as deodorants, in the...
... hope (from the academic's point of view) that somehow they can weigh in with their ideas and that some of them might see the light of day regardless of the compromises required by working within the system. So the result is participating in various committees and commissions
tasked with drafting proposals for charter change and actual amendments, only for the effort to bog down because of one part systemic flaws (the constitution's own flaws when it comes to amending it) and another part politicians have the money and power but not public approval
when it comes to processes that make little sense to an uninformed public (and media). What often checkmated the process in the past was less clever, working, constitutional design, but vested interests: the senate would not abolish itself nor the supreme court relinquish its
increased powers under the present charter. And in both cases, both institutions ranged against presidents and the lower house, could point to being in synch with public opinion. For the first time however, there is doubt whether the senate will hold firm or the supreme court
stand in the way of a determined presidency and lower house. For a time it seemed the public too was prepared to throw caution to the winds. But recently public opinion seems to be increasingly against the changes being proposed. And the closer the whole system gets to a mid-term
election, the more inclined everyone participating in the system is, to set aside experimentation and focus on near-term objectives (winning in 2019 and positioning for 2022). This is not good for those who originally wanted to make 2019 either a non-starter or meaningless.
Having failed there, however (they couldn't stop the mid-terms), option B is to win control of the Senate so it will commit suicide, further stack the Supreme Court, and use the last half of the President's term to make 2022 the prelude to a 2022 plebiscite to change the system
if one assumes it's already too late to slip in a 2019 referendum on a new Constitution. Though there are those convinced it is still possible for the President to call for a Constituent Assembly in his SONA. Who knows? What we do know is that the draft signed, sealed delibered
by the Constitutional Amendments Commission is nothing more than the consensus of senior-citizens and academics, some with a legal background, many with no political or executive background, subject to amendments by the President, some "consultations" with the public, and which
will only matter to the extent that its recommendations are read, understood, and retained, by the members of Congress, whether in the lower or upper house. A lot of ifs --enough ifs to make it essentially an exercise in futility because the factions in Congress can always say
not only know better, but have done better with their own submitted draft provisions. But again, whether pushed in July 2018 or 2019 or in 2022, the wide gulf between what the public is willing to consider and the means it considers legitimate, and those officially-sanctioned,
remains immense. The wild card remains whether the President's popularity remains high enough, long enough, to make a difference, and whether institutions are damaged and lacking in morale enough, to roll over unlike before.
What the ConCom has done, however, unlike the stubborn unicameral, parliamentary failed efforts of the past, is to understand the parameters of public opinion, so it's proposed a presidential, bicameral system, which makes it far more palatable to the uninformed. But precisely
because of its composition, hardly anyone in professional political life is likely to consider these proposals as anything more than ivory tower impracticalities. Which means for its members the worst of both worlds. They would be implicated in the outcome without having been
taken seriously by those who made that outcome happen.
Again, the one thing most political groupings couldn't oppose because perfectly acceptable to the public, an elected convention, is the option not adopted because it might actually reform the system instead of making it more convenient for the retention of power by incumbents who
are sick of national elections and the limits on official behavior imposed by public opinion.
Anyway, the ConCom's output is like a quilt produced by a frustrated sewing circle long denied an opportunity to make something fluffy. So one can charitably consider it as a theoretical exercise. What will matter is whatever ends up approved by the House, whether or not...
it adheres to whatever the President decides to submit (if he submits anything). And in that draft, what will matter are the transitory provisions first of all. Either they avoid the landmines that would provoke public suspicion or...
public suspicions will be aroused. If not a cause for suspicion, only then should scrutiny of transitory provisions give way to an argument on the merits, or lack of them, of the House version. If a cause for suspicion, then there is no point in discussing...
whatever it is that the House (whether it took notice of the ConcCom's exercise or not) wants to put forward.
The ConCom, together with similar decorative commissions, will be useful for tracing academic fashions in terms of political and legal thinking in certain circles. But personally any gathering that has former CJ Puno at its head does not compute, both because of how he...
originally gained legal prominence, as one of the bright boys thinking up schemes to give a legal veneer to the Marcos dictatorship, and how he ended his career, presiding over the Court that turned its back on the examples of Chief Justices Moran and Concepcion (Moran refused a
midnight appointment; Concepcion retired early in heartbreak over the court's surrender to Marcos) by giving legal cover to Corona's acceptance of the poisoned chalice of a midnight appointment. His very existence is living testimony to the approach to the law and institutions...
that gives preeminence to the appearance of legality but not the spirit of the law and institutions, a hollow approach. The discouraging thing about exercises like the ConCom is that it ties what should be serious subjects deserving serious discussion and exploration, to whatever
happens of the current effort to turn back the clock.
In the end, IMHO the best Constitution we had, the 1935 Constitution, proved the limitations of all constitutions --they are only as relevant and enduring as the commitment of people to the institutions those constitutions create. Let's not forget that Marcos had to rely on a...
self-coup, to put himself in a position where he could take over government; and that it was a combination of a spineless House of Representatives (and most of the Senate), and an intimidated SC (because he threatened the SC with abolition if they dared question martial law)...
that enabled Marcos to get away with dictatorship. In other words, we have to get rid of this hangover from the era of religion, that the Constitution is some sort of magical, mystical text that in and of itself has powers to protect, deter, or punish. No, its the social contract
and people manning the institutions up and down the line, who make it work or not. The moment those in responsible positions abandon their responsibilities no constitution in the world can endure. It is a lesson too proven by the current Charter, written to represent...
a commitment to not repeating 1972-86. Yet we have seen over two years how thoroughly a society's consensus can be erased. In the end any deliberation on a constitution's fate requires studying those who will be tasked with upholding it in the future.
There isn't enough reflection, either, on what can be called the law of unintended consequences, when past conventions (the power of precedent and tradition to limit irresponsible behavior) are set aside, out of good intentions or reforming zeal. Sometimes it can create more...
problems than are solved. There needs to be a means to take these lessons into account and a convention which has its own problems might still be a more rational forum for this kind of learning.
