Constitution: To Amend or Not to Amend?

Manuel B. Quintal, Esquire

Change is the only constant in life
– Heraclitus, Greek philosopher

Change is the only permanent situation and its occurrence is just a matter of time.

There comes a time in the existence of a country, whether with a freely-elected government or authoritarian government, that its fundamental law needs to be changed. It is easy to change it under a government that is authoritarian. But in a country with a democratically-elected government, like the Philippines, the process of amending the constitution is not that easy or simple.   It is the purpose of this article to discuss the issues affecting or influencing the need to amend and when to amend the constitution.

In the days past when I was teaching in college, we used amendment to refer to a change in a part or parts of the constitution, as distinguished from a revision, which is a replacement of the whole constitution. It must be noted though that, given the fact that ideas on government did not actually come out of nothing and, therefore, not entirely original, a constitution is not really entirely different from the one it purportedly wholly replaces. It is more appropriate to say that the ideas in a prior constitution are re-stated or stated in different ways in the constitution that is deemed a replacement of the old.   Anyhow, for our purpose and unless otherwise indicated in this article, we shall use the term amendment to include revision, as opined by the Philippines Supreme Court in the case of Occena vs. Comelec (104 SCRA I, April 2, 1981).

Whether it is an amendment or revision, a change or changes occur.

When is the proper time to change the constitution? Anytime the people wants to maybe the best answer. If this be absolutely so, however, there will no stability in government because what the people wants may only be dictated by temporary and fleeting passions and needs.   Should governments and officials be removable or replaceable anytime the people wants to? Should governments and officials’ time in power be extended anytime the people wants to by changing the fundamental law, previously approved by the very same people, that sets forth how and when they were elected?

Let us have a brief lesson in how society and governments were thought to have started to have a better idea of how we, the people, come in this process of amendments. No one really knows how society and governments originated. What we have are theories. Political philosophers theorized that before human society as we know it came into being, every man lived on and for his own. To use an age-old and worn-out cliche, it was “an eye for an eye, tooth for a tooth” kind of lifestyle. Lex talionis (law of retaliation) was the governing law. You got what you could by whatever means you would employ. The strong, physically and mentally, got what he wanted. Just picture the caricature of a man with a club in his right hand and his left hand pulling a woman he liked by her hair to have a clearer vision of that lifestyle. Needless to state, there was endemic chaos. There were no man-made laws to regulate human conduct and no entity (individual or group) to enforce any. Theorists imagined that the people decided to give up their natural freedoms in favor a government or ruler that had absolute powers (under the so-called divine right theory) or a government that that they could change at will. Whether these imagined scenarios really happened or not, it had been used to justify changes in governments. From these theories flow the idea that whatever kind of government the people ceded their freedoms to, that government was expected to advance the people’s welfare — the general welfare. We will deal more with the latter kind of government system.

Direct democracy, as that system of government came to be known, was doable in a small group of people in which all might assemble in one place upon moments’ notice to discuss and decide affairs that affected or would affect them all.   This, of course, is not possible today where communities or countries are populated by several thousands or millions of people, under one central or national government. Representative democracy is what we have come to adopt.

That the people surrendered some of their natural freedoms may be covered by a series of laws that evolved through the years, as is the case with most common law countries, the most famous example being the United Kingdom. Written laws clearly defined them. Most countries today have one law that is above all other laws, and it is called the constitution.   In it, the people defined the extent of powers their government will have, how long its officials will exercise them, and what rights the people have reserved for them which their government and officials may not take away.

In other words, the people retained some powers for themselves. The United States Constitution, in Amendment X, clearly states what authority were surrendered, to wit: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Italics added for emphasis.)   The Philippines 1987 Constitution, in Article II, Section 1 declares that “all government authority emanates from them.” The idea that the people reserved powers to themselves and the expectation that their government was formed to promote the general welfare are the philosophical basis of the people’s right to revolution.

As we see it, a constitution is a statement of the wishes and aspirations of the people that their government are supposed to promote and help attain, in exchange for the individual freedoms they have surrendered to the government. Government leaders in a representative democracy, like the Philippines, are and must be constantly reminded that they are there to promote the general welfare, not their own. The business of government is not for personal profit but for the common good.

How often then should the constitution be amended? It is a well-settled view that a constitution must be rigid and not easily changed, as compared to lesser laws. The constitution is designed to promote stability in the country. It is not designed to change with the fluctuations of the people’s emotions. That is the province of lesser laws, ordinances, and other rules which government leaders and lawmakers may adopt every now and then and change at will , without the direct participation of the people, as conditions change.

The number of times a constitution is amended reflects the stability of the system of government of the country and the perception of the people as to what may or may not justify such amendment. The United States of America, the best and oldest example of a country with the most stable representative government with a written constitution, has amended its constitution twenty-seven (27) times, the last amendment being in 1992. These amendments refer only to particular parts of the original constitution that became effective in 1788. Twenty-seven (27) amendments of particular parts of the constitution within a period of about two-hundred twenty six (226) years. The original constitutional provision giving the president four years term of office, without limitation to reelection, was only amended in 1951, limiting the term of office to two four year terms. Despite that original provision, no president ever served more than two terms, except Franklin D. Roosevelt during the Second World War era. The bicameral Congress and federal set-up, have remained as it were when created in the original provisions of the constitution. The constitution itself does not provide for the number of Supreme Court Justices. Congress fixed the number to nine justices to serve for life. Neither the cataclysmic world and regional wars in which the country were involved, the natural disasters, nor the age of electronic surveillance and drones were considered sufficient to justify an amendment in the constitution.

Comparatively, former colonies that became independent after the Second World War have had unstable governments and adopted several versions of constitutions dictated by the governments in power. The changes may be partly due to the fact that the constitutions are long and had detailed provisions that tended to become too restrictive, irrelevant, and deterrents to the evolutionary demands of economic and political developments. The constitutions were apparently framed more to address demands and needs at the time they were written rather than what lies beyond, foreseen or unforeseen. For fear of excessive government authority and abuse and misuse of authority, the constitutions have unwittingly included limitations on the leaders’ ability to address future events and circumstances to achieve what the government is expected to do for the people. This is not exactly an error of judgment. It is an indication of the people’s mistrust of government and leaders they have put or will put in positions of authority, an attitude borne from a perception that is not entirely without basis in fact. The perception resulted from history and their experiences.   It is not the subject of this article to deal with the specific changes in the constitutions of those developing former colonies trying to survive and prosper as independent countries. The fact that those changes occurred more often was only cited to illustrate that the number of changes varies greatly and may be affected by various factors peculiar to the country concerned.

But, nevertheless, let us make a passing review of how the Philippines fundamental law has undergone transformations. The Philippines have had several constitutions since 1935. The 1935 constitution, which was made at the time when the Philippines was still a colony of the United States and patterned after the American constitution, was amended three (3) times, one of which provided that the President and the Vice-President could be eligible for a second four-year term. The 1973 constitution, originally drafted by a freely-constituted constitutional convention in 1971 but finished and became effective through the auspices of the dictatorial government functioning through martial law , was amended four (4) times within ten (10) years until 1981. The present constitution, effective since 1987, has not had any amendments.   There have been people or groups of people who called or are calling for amendments, meaning changes to particular parts of the constitution, to address specific concerns, including foreign investments and term limits for the president and vice president.   It is not within the purview of this article to discuss the manners of amending the constitution. Suffice it to say, that any proposed amendments are required to be submitted to and approved by the people (electorate). It is the people who has the ultimate say on whether or not any amendments shall become part of the constitution and become effective.

So we go back to the questions we raised earlier: When is the proper time to amend the constitution? Must it be amended every time there is clamor for it?

When and how many times the constitution is to be amended certainly depends on the people. In a representative democracy, like the Philippines, the right to propose amendments lies with the chosen representatives.   This is not to say, however, that the people as a group cannot make such proposals. The boisterous few does not necessarily represent the clamor of the people. A survey or poll is not always a credible way to measure the real clamor of the people.   They can be manipulated to support the self-centered designs of a limited few.   Though statistics of today may no longer be the highest form of lies that Disraeli considered it to be during his time, the manner in which it is conducted will affect the credibility of its result. One must look to the conductor, the sponsor, the size or number of the people involved, and the geographical location covered. Nonetheless, there is always a degree of error. The background and ambitions of individual political leaders are factors that must be considered to determine whether their proposals are more for their personal interests rather than that of the majority of the people.

There is certainly no standard carved in stone upon which to determine when a constitution may be amended. Necessity will dictate when it should happen. It is reasonable to believe that the framers of the constitution did not intend it to hinder the development of the country and its people. The people who as we argued ultimately decides on what and when amendments should be made must be watchful of individuals or groups who propose amendments. No limitations, legal, moral, or otherwise, should be made on the right of leaders or groups to propose amendments.   The highest officials of government have equal rights as any other citizen to propose amendments and none may be castigated unreasonably for doing so. Let the proposals be tested in the marketplace of ideas to determine its worthiness. However, the constitution must not be amended every so open that it ceases to be the steady and lasting guidepost of the framework of government, the conduct of our officials, and our behavior as a people.

Amendments are bound to happen. Let us only hope that the people, the electorate, has learned enough to discern whether necessity truly exists — one that will benefit the general welfare and one that will justify whether to amend or not to amend the constitution.

At any given time.

August 20, 2014
New York, NY

See other works of Brod Manuel B. Quintal, Esq.

Inspirational Words to Live By
Ikaw Lamang
The Universality of Rizal’s Ideas and Its Relevance to Filipinos Today
Rizal: Filipino hero, Asian and a universal man
The Law and Politics in Impeachment
Words: The Tools of the Legal Profession

Manuel B. QUintal About the Author

Brod Manuel B. Quintal, Esquire, is a former college  professor of Political Science and Law, with graduate degrees in both disciplines. He practices law in the State of New York. His Law Offices of Manuel B. Quintal, P.C. is located at 291 Broadway, Suite 1501, New York, NY 10007, United
States of America. He is the president of the Tau Kappa Phi Law Fraternity Alumni Society – USA/Canada, for 2014-2016.

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