Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer

MANILA, Philippines – Is it possible to have a “surgical” amendment to the Constitution? Can the juridical relation of Mindanao or parts thereof to the rest of the Philippines be altered without disturbing the presidential and the rest of the unitary system?

From what I have seen of the conflict in Mindanao and of the efforts to achieve permanent peace in the region, I have become convinced that lasting peace cannot be achieved without some significant changes in the structure of government in Mindanao.

I am convinced, however—and I have for a long time taken this position—that a complete overhaul of the current Constitution is not needed. However, whenever constitutional change is mentioned, some immediately express the concern that the initiation of any form of amendment will open up the floodgates for a total overhaul of the Constitution to favor those who wish to maintain their hold on power.

Even now, however, if the people in power are really bent on ridding the Constitution of provisions that are obstacles to their ambitions, the changes that they might want can be initiated as early even as the next resumption of Congress. Whether or not they will succeed is another matter.

Change can be initiated even without a constitutional convention or without Congress coming together in joint session as a constituent assembly. This is so because of the way the current provision on constitutional change is worded.

The Constitution now says: “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.” Clearly, a constitutional convention is not needed. Congressional action is needed, but, unlike under the 1935 Constitution, Congress is not required to be in joint session to be able to propose a revision or amendment. The two Houses have the option either of coming together in joint session or of deliberating separately as they are where they are as they do in ordinary legislation. In other words, whether to act in joint session or separately is for Congress to decide. It is a “political question.” Thus, either legislative chambers can initiate a constitutional amendment bill or a constitutional revision bill, debate on it, and approve it by a vote of three-fourths of all its members and thereafter pass it on to the other house for similar deliberation and action. If approved by both houses, it can go to a plebiscite for ratification—or rejection by the electorate.

Under such an arrangement the proposed change can be as broad or as narrow as the legislators might want. The fact that no one has tried this method for the purpose of radically overhauling the Constitution is perhaps an indication that neither the Senate nor the House of Representatives is prepared to overhaul the current Constitution.

Neither, however, has this method been used for achieving isolated changes in the Constitution. It has not been used for removing term limits. It has not been used for making changes in the economic provisions nor for any change which can be perceived as intended to benefit the authors of change.

In my view, the search for a solution to the Mindanao problem can be approached through this “surgical” method. More specifically the goal can be either a reformulation of the powers that can be given to the Autonomous Region or the formation of a federated state for Mindanao. I believe that a limited constitutional change can be achieved by Congress under the present constitutional provision without disturbing the rest.

Once a proposal is approved in one house by a vote of three-fourths of all its members, it can be sent to the other house for its consideration and disposition. If one house refuses to cooperate, that will be the end of the proposal. Or, if the version approved by one house is different from that of the other, then, as in ordinary legislation, a bicameral committee can be formed to resolve differences. Once a common provision is achieved and is acceptable to both houses, the provision will be ready for submission to the electorate for acceptance or rejection.

I believe that the urgent need to find a permanent solution for the Mindanao problem can more readily win the bipartisan or multi-partisan support of legislators. The executive department over the years has been deeply involved in the effort to find a solution for the Mindanao problem. But the executive department necessarily has to work within the parameters of the present Constitution. Reexamining the constitutional constraints that have made peace unreachable is a task not for the executive department alone. Any solution that will involve some degree of change in the Constitution cannot be achieved without the cooperation of Congress. For that matter, it cannot be achieved without the final approval of the electorate.

It is my hope, therefore, that the leadership of both houses of Congress will take the bold steps needed to find, in cooperation with the executive department and in consultation with the people of Mindanao, a constitutional solution for the Mindanao problem. Thereafter the architects of change will have to sell their product to the total electorate in a plebiscite.