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Monday, January 1, 2018

Why reforming the 1987 Constitution is a Catch 22

FROM A DISTANCE By Carmen N. Pedrosa (The Philippine Star) | Updated December 31, 2017

I wanted to write the usual formula for end of the year columns – what the past year brought us and the promise of the coming year. But having started the debate on Revgov as the only way to change the 1987 Constitution I feel obliged to try and make it as clear as I can make it.
There cannot be constitutional reforms without going through Revgov for the simple reason that the 1987 Constitution cannot be amended and any change we want for our country through constitutional change cannot be done within the present Constitution because it does not give the proper rules of amendment.
A facebook friend Slobodan Krajinović has likened our situation to a Catch 22. The term comes from a novel written by Joseph Keller. It is defined as “a dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions.”
I find the Catch 22 metaphor as the most commonsense approach on why we should have a Revgov. I do not see any other way by which we can solve the issue of the flawed provision for amendment. 
I think we should find the solution to this dilemma even before we discuss the amendments to be made or even more compelling if we have to shift government from the presidential unitary government to parliamentary federal government. 
In other words, we have been trapped in a Catch 22 paradox in which we are attempting to escape a condition that has been made impossible by the Article XVII of the 1987 Constitution.
Constitutional reform cannot be done because the 1987 Constitution cannot be reformed or changed without changing the provision on amendments first. I can almost see the acrimonious debates that will follow in the coming days that will result in the end to “no change.” 
A strong leader like President Digong Duterte can lead us out of the dilemma. We are not asking him to assume powers that will solve the more fundamental issue. We have to face the fact – how to amend a Constitution with flawed rules for amendment. This is in black and white in the Article for Amendment or Revision, Art XVII of the Constitution. 
So far, we have only heard from  Revgov proponents for Duterte to assume powers which will enable the sovereign Filipinos to hurdle the mistakes of the 1987 Constitution on amendment. Yet it seems both the Revgov proponents and oppositors are not tackling the issue. 
Filipinos will need a strong will to overcome this dilemma or just ignore it. That is unconstitutional. We will face the reversal of why we elected a strong leader if this issue is not tackled. I even read a blog which states that those seeking amendments can be accused of inciting rebellion.
Is it our fault that the framers of the 1987 Constitution failed in their duty. I have heard some of the members of the 1986 commission which drafted the Constitution say that in the hurry to finish the work the provisions that should have governed the rules for amendment were omitted.
That is not an acceptable reason but since it has been written and voted upon in a plebiscite, we do not have any choice but to seek the amendment of the rules on amendment. As far as I know, a single term or even a punctuation mark that alters the intent of a provision is subject to this stricture or it will be unconstitutional. 
I am of the view that major change is, indeed, needed as part of the general process of renewal, of making a fresh start. I know that this view is shared by some of other Revgov colleagues. More than ever we now need to express our views more clearly. But first we have to remove the unconstitutional hurdle of amendments before we even begin to discuss amendments. 
Unfortunately, this inherent defect in the 1987 Constitution cannot be fixed unless the Constitution is amended. That is exactly what a Constitutional Amendment is all about. There is unfortunately no way around it. The 1987 Constitution is defective and needs thorough revision, if not an overhaul.
Members of the commission who wrote the 1987 Constitution give the lame excuse that in the rush to finish the writing of the constitution, the details of the provision for amendment were omitted.
This column gives the last word to former CJ Puno who answers the question on why the 1987 Constitution should be amended.
“We elect our leaders and it is our duty to provide them a constitutional framework of government where it will be difficult for them to fail the people. I reject the argument that there is no urgency in amending the Constitution to arrest the decline of our democracy. We do not need a democracy in a stretcher. We cannot wait for our democracy to be in the ICU before calling the doctors.
I started by saying, I am only peddling proposals of change in the hope of provoking debates. If I have done anything correct this afternoon, it is to choose the University of the Philippines as the marketplace of discussion of these proposals. It is one venue where the irrelevant is not treated as irreverent, where there is no idea that is considered as inciting to sedition, where we are taught to doubt and to doubt, doubt itself.”

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