May 24, 2024

The House of Representatives and the Senate are now proposing changes in the 1987 Constitution. Both proposals as contained in Resolution of Both Houses (RBH) 6 and 7 are titled “A Resolution of Both Houses of Congress Proposing Amendments to Certain Economic Provisions of the 1987 Constitution of the Republic of the Philippines, particularly on Articles 12 (National Patrimony and Economy), 14 (Education, Science and Technology, Arts, Culture and Sports), and 16 (General Provisions)”.
Our lawmakers propose to lift the 40 percent limit on foreign ownership on the three sectors to attract more foreign direct investments to our country and create more jobs for Filipinos.
By adding the phrase “Unless otherwise provided by law” in Sec. 11 of Article 12, Sec. 4 of Art. 14, and Sec. 11 of Art. 16, foreign ownerships beyond the 40 percent constitutional limit on the said provisions can be done through legislative fiat.
The Senate version, denominated as RBH 6, however, differs from the House version denominated as RBH 7, in that, it provides that voting on the amendments should be undertaken separately by the two chambers because the Constitution, while requiring three-fourths vote of all members, is silent on how the voting should be done.
Considering there are only 24 members of the Senate, while the House of Representatives has 316 members, by their sheer number, the latter chamber could easily control the voting.
It would appear from the proposals of both chambers that they are now veering towards another mode of constitutional amendment that is not specifically spelled out in Article 17 of the Constitution. This mode of amendment is now called the “Bernas formula”, named after the late Father Joaquin Bernas, a great constitutionalist whose legal expertise and opinions were sought after by no less than the Supreme Court.
Fr. Bernas was the Dean of the College of Law of Ateneo de Manila University and eventually became the president of the said university, before he was appointed by then President Cory Aquino as a member of the 1986 Constitutional Commission, which framed the 1987 Constitution.
In his opinion, as published by the Philippine Daily Inquirer in 2012, Fr. Bernas stated both houses of Congress are not required to be in joint session to formulate amendments to the Constitution. It is possible for the two houses to formulate amendments the way they formulate laws as they are where they are. Once one house is through with a draft, it is passed on to the other house for action.
The required three-fourths vote of all the members of Congress must be met and, as proposed by the Senate under RBH 6, the voting must be done separately by each chamber.
Note that there are two RBHs filed but only one version will have to be passed and submitted to the people for ratification in a plebiscite to be held for the purpose.
The House is rushing the passage of its version, RBH 7, hoping the members can vote on it before Congress adjourns this month and that a plebiscite for its approval may be held before the midterm elections next year, so that the proposed constitutional amendment will not be “politicized” should the plebiscite coincide with the midterm elections.
The Senate is not, however, in a hurry to deliberate and pass RBH 6. Apparently, the Senate is inclined to have a plebiscite that shall coincide with the midterm elections in 2025, to save the government millions that must be appropriated if a plebiscite will be held separately from the midterm elections. Some senators also opine that garnering the three-fourths vote in its chamber, although not impossible, will be difficult to obtain.
There will be obstacles during the deliberations and approval in the House and in the Senate, of their respective RBH considering that some members of both chambers still are of the opinion that there is no need to amend the Constitution.
More pressing needs of the people like an increase in the minimum wage, addressing inflation and the increasing prices of basic commodities, traffic and transportation issues, should be the priorities of our legislators, are the comments found in social media regarding the topic of charter change.
In fact, the Fr. Bernas formula of charter change may also be challenged before the Supreme Court. Any or all of these challenges will surely delay the intended plebiscite dates of Congress.
Then, we are reminded of the sagely advise of Fr. Bernas on the purpose of charter change when he wrote: “I have always maintained myself that, for our society, success or failure depends not so much on the system as on the people running the system. It is easy to write a Constitution; it is more difficult to make a Constitution work… The purpose of a Constitution “is not so much as to achieve efficiency as to avoid tyranny in its various varieties.”