Does Article VII, Section 5 Make the 1987 Constitution, Unchangeable?
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| ABS-CBN News |
I noticed that some stubborn boomers on Facebook are citing Article VII, Section 5, of the "sacred" 1987 Constitution of the Philippines. This is what it says:
SECTION 5. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:
“I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” (In case of affirmation, last sentence will be omitted.)
Does this mean that the 1987 Constitution must be upheld at all costs? The reality is absolutely not. In fact, preserving and defending a constitution doesn't mean that no changes can be made whatsoever. This is the mindset that people like Atty. Hilario Davide Jr. (who is now turning 91 this year, next month), was a staunch defender of never amending the Constitution, according to the UP College of Law:
Former Chief Justice Davide, Jr. sees no need to amend the Constitution and believes that, assuming an amendment is necessary, the amendment should not include a shift to a federal system of government. In his opinion, a federal system of government is not suited to the country and the people because it would divide the country instead of uniting it. In his view, dividing the country into several states will lead to the creation of false loyalties, a large and bloated bureaucracy, and political dynasties.
Davide even said this in 2018:
Former Chief Justice Hilario Davide Jr. on Wednesday asserted that there is “absolutely no need” to amend the 1987 Constitution, as it remains to be the “best in the world” despite its “imperfections.”
During the Senate constitutional amendments and revision of code committee hearing into the the proposed revision of the Constitution, Davide, one of the resource speakers, expressed his dissent against any efforts to change the Charter as floated by some leaders of Congress.
“There is absolutely no need to amend or revise our Constitution,” Davide said in his opening speech, citing that it has remained unamended for nearly 31 years.
Davide recalled that he participated during the approval of the draft 1987 Constitution on Oct. 12, 1986.
“When we voted at the final voting of the draft of the Constitution on 12 of October 1986, I embedded my affirmative vote with these words, modesty aside: into this Constitution I have given my blood, tears and sweat. This is the Constitution I’m willing to die for.”
The contradiction gets glaring because Davide has admitted that the 1987 Constitution of the Philippines has its imperfections. This is why I would choose to listen to either Mahathir Mohamad or Kishore Mahbubani over Davide. Davide is a running joke, or what I would call the old man who grew old with a stubborn mindset. In Tagalog, the term is "matandang walang pinagtandaan". Growing old is a glorious thing, but only if the old person shares wisdom that young people can use. An old person can tell the younger people to "never stop learning". It's like how my paternal grandmother can offer timeless advice such as maintaining decorum and composure. Some principles of the old people never die away, like a respect for elders and subordinates, having a flexible mindset, eating right, and learning even as you grow old. Then again, even old people can tell young people, "It doesn't mean every old person is worth listening to."
Preserving and defending the Constitution doesn't mean no changes, but making changes when necessary to preserve and defend it
SECTION 1. 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; or(2) A constitutional convention.SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.The Congress shall provide for the implementation of the exercise of this right.SECTION 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.
I would never undervalue the 1987 Constitution. It dismantled the legal framework of a repressive regime and established the democratic institutions we enjoy today. For this, I am grateful.
The 1987 Constitution was crafted with the best of intentions. It sought to put the Filipino first in all aspects of governance and to level the playing field amongst sectors and peoples. But it is far from perfect. It failed to consider the importance of foreign capital and technologies and the stiff competition we would have to face to obtain them. In short, its economic provisions were short-sighted.
So despite the Constitution’s patriotic bravado, reserving certain industries exclusively for Filipinos (or a Filipino majority) worked to our peril. It deprived the nation of valuable foreign investments, technology transfers, tax revenues, export earnings and jobs.
The Constitution’s restrictive economic provisions stunted our development for 36 years. From 1987 to the close of the century, Singapore, Malaysia and Thailand leapfrogged in development on the back of a deluge of foreign direct investments (FDIs). During that period, the Philippines’ share of regional FDIs lagged at a pitiful 3 percent in good years and 2 percent in normal years.
From the year 2000 up to the present, Vietnam and Indonesia took their fair share of FDIs, leaving the Philippines further behind. The country’s intake of foreign investments is less than half of what Vietnam and Indonesia realize. No surprise, our exports have also been the lowest among our peers. The lack of investments in manufacturing capacities have left us no choice but to export our own people.
Imbedded in the Constitution are industries in which foreigners are precluded. These include agriculture, public utilities, transportation, retail, construction, media, education, among others. Further, the Constitution limits foreigners from owning more than 40 percent equity in corporations. Foreigners are barred from owning land too. These provisions caused us to lose out on many investments which would have generated jobs, exports and taxes. Not too long ago, we lost a multibillion-dollar investment from an American auto manufacturing company that chose to invest in Thailand instead. We lost a multi-billion smartphone plant by Samsung, who located in Vietnam.
Sure, the Public Service, Foreign Investment and Trade Liberalization Acts were recently amended, allowing foreigners to participate in a wider berth of industries with less rigid conditions. But it is still not enough. The Philippines remains the least preferred investment destination among our peers.
Our flawed economic laws are the reason why our agricultural sector has not industrialized and why food security eludes us. It is also why our manufacturing sector has not fully developed. It is why we lost the opportunity to be Asia’s entertainment capital despite our Americanized culture (Netflix located its Asian headquarters in Singapore, Disney in Malaysia, MTV in Hong Kong and Paramount Studios in Taiwan). It is why our education standards are among the lowest in the world. It is why many industries are oligopolies owned by only a handful of families.
As for the form of government, I am willing to give the federal system a chance. Let’s face it, the current presidential system fails to provide the checks and balances for which it was intended. Senators and congressmen still vote according to party lines, albeit in a much slower legislative process. So yes, I am willing to try a new form of government because 36 years of insisting on a flawed system is insanity.
The world has changed since 1987. Our Constitution must keep up with these changes if we are to be competitive. This is why I support Charter change, except in the extension of term limits of public officials.
How do we understand amending and revising the current constitution? It's like this, according to Respicio & Co.:
Fundamental Distinctions
The terms "amendment" and "revision" both pertain to changes in a constitutional text, but they are not synonymous. Understanding the subtle but crucial differences between them is essential for lawmakers, legal practitioners, and the general populace.Amendment: Focused and Specific
An amendment generally refers to a change of specific provisions within the Constitution. These changes could be as minor as the alteration of a single word or phrase, or as substantial as the addition or removal of an entire section or article. However, the scope of an amendment is limited, in that it does not alter the overall framework or structure of the Constitution.Revision: Comprehensive and Structural
On the other hand, a revision is much broader in scope and involves a comprehensive change that affects the basic framework or structure of the Constitution. This could include changes to the form of government, the powers vested in each branch, or the way representation is established. Unlike amendments, revisions often require a more rigorous process of approval, which usually involves convening a constitutional assembly or a constitutional convention.
In short, unlike the dictatorial 1973 Constitution, which Ninoy called a mock parliament, the 1987 Constitution of the Philippines has given Filipinos freedom. What was overlooked was the chance ot use that freedom to criticize the structural weaknesses. In fact, the 1987 Constitution even says that people's initiative can matter. That's why I'm doing this writing—giving Filipinos information that even if the 1987 Constitution is in itself, outdated, there's the provision to update it without the need of another EDSA people power.
Raising the Marcos Regime again isn't going to work on me this time. If one really paid attention to Ninoy's speech—the problem was manipulation. Changing the constitution wasn't the problem per se. Instead, the real problem was that Ferdinand E. Marcos misused and abused his power. If nothing was wrong with the law, why did we even need a new constitution with an open end? Sure, the mistake was with Article XII (which can be corrected via amendment, which I propose remove all the ownership restrictions from the constitution, and move it only into legislation) but Article XVII was put there. Marcos' real problem was that he amended the Constitution to his own benefit, and amended it several times at a whim rather than going from this type to that type. Ninoy even mockingly compared it to 80 Days Around the World.
No, amending the Constitution isn't necessarily a threat to democracy. It's part of a healthy democracy. A healthy democracy doesn't live in outdated principles. In fact, these words by Maria Corazon Cojuangco-Aquino are clear as day, that the 1987 Constitution was never meant to be forever:
You must define and protect our individual freedoms and rights; you must decide how our different institutions of state will relate to each other. Do not be distracted by political debates and matters of policy that do not belong within your constitution-making exercise. You are here appointed, by the people’s wish, to write a constitution; you are not here as elected politicians.
Bear in mind that you shall be pondering, debating and writing a constitution not only for our contemporaries with their present concerns, but also for succeeding generations of Filipinos whose first concerns we cannot presume to know beforehand. Future Filipinos must always be free to decide how to address these concerns as they arise. Even the wisest cures for present maladies should not be imposed on succeeding generations that will have their own unique problems and priorities.
True and long-lived constitutions, a wise justice has told me, should be broad enough to be able to meet every exigency we cannot foretell and specific enough to stoutly protect the essentials of a true democracy; in short, open-ended documents that will always be relevant. Remember that constitutional changes are not safe or easy to come by. Our first attempt at constitutional revision was followed by a dictatorship. And this, our second endeavor, was preceded by a revolution.
Future Filipinos and their legislatures and Supreme Courts can best assess and address the challenges they will meet if they enjoy the widest latitude of thought and action. In writing a constitution have the fullest confidence that the wisdom of our race is exhausted in us. Our race has grown in wisdom over time. I believe it will continue to do so.
Yours is indeed no easy task. On the other hand, depending on the result, yours will be no small glory. Our people have suffered much.
To defend or preserve the Constitution means keeping the good and throwing away the bad. It's because laws will never be perfect. We need amendments every now and then. If amendments aren't enough, go for revisions. In this case, I am for going to shift to a parliamentary form of government aside from the shift towards a more FDI-friendly Philippines, to be managed by legislative restrictions instead of constitutional restrictions.
