There is no 4th mode

By Michael Henry Yusingco, LL.M

Let us be clear about this. The 1987 Constitution prescribes only three modes to amend or revise it. Despite the hype by some of our lawmakers, there is no fourth mode.

Fr. Joaquin Bernas, S.J. did mention the words “fourth mode” in his column, but these lawmakers have misappropriated his thoughts behind this proposition. Why would an esteemed constitutionalist like Fr. Bernas ever recommend something not sanctioned by the constitution?

Either these lawmakers did not totally understand what Fr. Bernas was suggesting or they are deliberately misusing his words for their own ends. In both instances, they dishonor the legacy of Fr. Bernas.

So, to dispel any further doubt, let us now be completely technical. The pertinent provisions of the 1987 Constitution are found in Article XVII, to wit:

“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.”

To summarize, the three modes are the following:

1. By Congress exercising its constituent power;
2. Through a constitutional convention; and,
3. Via People’s Initiative.

Let us start with the second mode, popularly known as Con-Con. The last one we had was the 1971 Constitutional Convention which drafted the 1973 Constitution. Interestingly, Martial Law was declared during the constitution drafting process. This intervening factor gave rise to a constitutional dictatorship.

The Con-Con mode can be initiated in two ways. First, Congress can call for the election of delegates to a Con-Con. The details of how this call will be implemented must be contained in that resolution from both chambers of Congress. Or, Congress can call for a referendum on whether to pursue a Con-Con or not. It will then be the voters who will make the decision.

As for the third mode, the 1987 Constitution clearly commands Congress to enact a law “for the implementation of the exercise of this right.” Effectively, there is no law yet, hence people’s initiative is not an available option. Notably, Sen. Koko Pimentel recently filed Senate Bill No. 2595 or the proposed People’s Initiative and Referendum Act of 2024.

However, the 1987 Constitution is silent on how Congress can exercise its constituent power. The only thing certain about the first mode is that the Senate and the House of Representatives vote separately. This is just commonsense given the bicameral structure of Congress. But also, the journal records of the 1986 Constitutional Commission would bear out the intention of the framers themselves which is separate voting.

The two chambers of Congress can, if they choose to do so, come together for ceremonial purposes. But ultimately, they will work separately and the specifics of the process are to be determined by Congress itself. The Bernas way is just one suggestion on how Congress can operationalize the first mode.

According to Fr. Bernas, “both houses might decide to do it the way they pass ordinary legislation—that is, as they are where they are but voting separately by a three-fourths majority, and only coming together, the way they do in ordinary legislation, to reconcile differences.”

This means amendment or revision proposals are to be treated like a regular bill where one chamber considers it first and thereafter transmits it to the other chamber. This process accounts for possible differences between the Senate and the House of Representatives and hence, some kind of “Bi-Cam mechanism” is needed at the end.

It is worth mentioning as well that Fr. Bernas actually wrote, “What I would call the fourth mode is Charter change through Congress doing it as two houses in separate sessions. The two houses can support a “surgical” mode of change focused only on one amendment.”

Therefore, the Bernas way may only be viable in a very particular context. Specifically, when the proposed amendment is simple and straightforward. Consequently, this option may not be appropriate when amendment proposals are complex and controversial like the ones contained in both RBH # 6 and # 7.

At this point, the absence of a consensus amongst lawmakers on how to proceed with the first mode to amend or revise the 1987 Constitution seems grave enough to press pause. Carrying on with this uncertainty means the Supreme Court will likely determine the fate of RBH # 6 and 7. And that does not bode well for constitutional reform.