Amend the Constitution to make men superior to women

The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. (Section 14, Article II of the 1987 Constitution)

If, for example, a group called Association of Believers in Christ (ABC) creates a movement to amend the above provision to say: "xxx ensure the fundamental superiority of men over women," will this be an amendment or a revision?
To answer the above question, the Constitution itself, under Article XVII, provides for the means by which the revision or amendment of the Constitution may be proposed and ratified.

However, at the outset, it must be pointed out that, although many people may find the above proposed change to be morally repugnant and absolutely wrong, there is nothing in the Constitution that expressly prohibits such a change. If the Constitution is the expression of the will of the sovereign people, then, in the event that the people change their will, so must the Constitution be revised or amended to reflect such change. Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people whose will it is supposed to express and embody.

Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a) by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The Congress and the constitutional convention possess the power to propose amendments to, or revisions of, the Constitution not simply because the Constitution so provides, but because the sovereign people had chosen to delegate their inherent right to make such proposals to their representatives either through Congress or through a constitutional convention.

On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power Revolution of 1986, reserved to themselves the right to directly propose amendments to the Constitution through initiative, to wit –
SEC. 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.

There is no question, then, that a change to the Constitution may be made to make men fundamentally superior to women if constitutionally done. It is important to emphasize that an extraconstitutional change would be revolutionary and, ergo, illegal and void. As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364, 930 P.2d 186, 196 (1996): "It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary."

The next question would be whether or not the proposed change is an amendment or a revision. This is important because an amendment can be proposed by Congress (by a supermajority vote of 75%), by a Constitutional Convention (called by Congress or by the electorate), or by the people through initiative. On the other hand, people's initiative cannot propose revisions.

This now brings the discussion to the tests to determine the nature of a proposed change.

In McFadden v. Jordan, 196 P. 2d 787 (Cal. 1948), the California Supreme Court laid down the groundwork for the combination of quantitative and qualitative assessment of proposed constitutional changes, in order to determine whether the same is revisory or merely amendatory. In that case, the McFadden court found the proposed changes extensive since at least 15 of the 25 articles contained in the California Constitution would either be repealed in their entirety or substantially altered, and four new topics would be introduced. However, it went on to consider the qualitative effects that the proposed initiative measure would have on California's basic plan of government. It observed that the proposal would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed powers to an independent commission created under the proposed measure. Consequently, the proposal in McFadden was not only deemed as broad and numerous in physical scope, but was also held as having a substantive effect on the fundamental governmental plan of the State of California. (G.R. No. 174153)

The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court in Raven v. Deukmeijan, 801 P. 2d 1077 (Cal. 1990). Proposition 115, as the initiative in that case was called, would vest in the United States Supreme Court all judicial interpretative powers of the California courts over fundamental criminal defense rights in that state. It was observed that although quantitatively, the proposition did "not seem so extensive as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless, "would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect."

Thus, the two-part test involves: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions." The court examines only the number of provisions affected and does not consider the degree of the change. (Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286)

On the other hand, the qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches." A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances." (Legislature of the State of California v. EU, 54 Cal.3d 492, 509; California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836)

The fundamental legal equality between men and women is a public policy and a basic principle mandated by Section 14 of Article II. State principles and policies are generally not self-executing, i.e., there is a need for an enabling law before they can be used as a basis for going to court. Not being a self-executing provision, the fundamental equality clause is not a source of right or obligation. (Diane A. Desierto (LLM 2008-2009). Justiciability of Socio-Economic Rights: Comparative Powers, Roles, and Practices in the Philippines and South Africa. diane.desierto@yale.edu. blog.hawaii.edu/aplpj/files/2011/11/APLPJ_11.1_desierto.pdf)

The nature of Section 14 is important because it determines whether or not the proposed "male superiority clause" is an enforceable right or not. For example, in Oposa v. Factoran (G.R. No. 101083, July 30, 1993), the Supreme Court held that, although they are under State policies and principles, the right to a balanced and healthful ecology and the right to health of the people (Articles 15 and 16 of Article II) are self-executing and enforceable rights.

The same was alluded to in Legaspi v. Civil Service Commission (G.R. No. L-72119, May 29, 1987) where the Supreme Court considered Section 28 (Article II) a corresponding and analogous provision to the right of the people to information on matters of public concern (Section 7, Article III).

CREATION OF A NEW RIGHT. The first question is whether or not the proposed male superiority clause involves a creation of a new right.

It is humbly submitted that it is a creation of a new right because there is a corresponding and analogous provision under the Bill of Rights. Section 1 of Article III says: "No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws."

The equal treatment between men and women used to be a debatable issue in the United States (US). In fact, during the adoption of the equal protection clause, Black people were considered inferior to white Americans. Whether black people and women were considered "equal to white males" was debatable, especially considering that the right of women to vote was only adopted nationally in 1920.

When the 1987 Constitution was ratified, women were already allowed to vote in the Philippines. On September 17, 1937 women's suffrage was legalized in the Philippines, one of the first Asian countries to allow this right for women. In fact, the President at that time was a woman. 

Therefore, it is not outrageous to assume that the equal treatment clause and the equal protection clause are corresponding and analogous provisions referring to the same right.

A male superiority clause under Article II would have a domino effect on the equal protection clause under Article III because the former informs the latter. The former  saying, "xxx ensure the fundamental superiority of men over women," would mean that the former affords equal protection only among males. As a result, this would give males a right preferred over that of females - a substantive right, legally enforceable and demandable, to trump the rights of women

AMENDMENT OR REVISION IN CREATING NEW RIGHT. Now that it is safe to assume (unless otherwise concluded by the Supreme Court) that a male superiority clause would be a creation of a right, is this or any creation of a new right an amendment or a revision? There are two views on this. (Considering that only one provision is affected, the quantitative test seems to lead toward a conclusion that it is more of an amendment. The two views below focus on the qualitative test.)

The first view says that creating a new right is, under the qualitative test, an amendment because it does not alter the basic  governmental plan. Fundamental and overarching principles of government remain intact, such as separation of powers, checks and balances, blending of powers, delegation of powers, etc.

The second view says that such creation is a revision. The creation of a new right and a new government policy alter the traditional relationship between the government and the people. The government would then have to give up its pro-women measures, initiatives and programs. Moreover, there will be a domino effect on the equal protection clause and other social justice provisions on women.

The right to suffrage would be affected as male votes can then be given more weight. Chances for public office would be affected as female candidates can be easily be disqualified for being females. The family and parental authority would be affected as males will have more family and parental rights. Access to education would be affected as male students may be given a preferred status. All these can be done by the government and women would not be able to object if the male superiority clause prospers.

WHY IT SHOULD BE A REVISION. Beyond the zone of the quantitative and the qualitative theories, there is a reason why such a male superiority clause should always be considered a revision.

Under the Constitution, people's initiative is limited to amendments (which are clerical changes, numerical changes, word choices, etc. only) because the precise spirit of the law is the avoid mobocracy - the rule of the many simply because they are many. Revisions (very substantive, substantial and meaningful changes) can only be proposed by Congress (with a supermajority vote) and by a Constitutional Convention (called by Congress or by the electorate); the purpose here is to make sure that revisory changes are well-thought of and well-deliberated.

INTERNATIONAL LAW ON EQUALITY OF SEXES. The foregoing discussion notwithstanding, it can be said that, whether revisory or amendatory, the male superiority clause should not prosper even if the numbers have it and even if the procedural and substantive requirements are complied with. Otherwise, we would be earning the ire of many nations.

This, of course, is not to say that non-gender discrimination is a norm in public international law that can be classified as "JUS COGENS" (peremptory norm from which no derogation can be made). Literature on this matter is replete with confirmation that non-discrimination against gender is not a jus cogens norm. (Levesque, A. M. (2012). Jus Cogens and Non-Discrimination: Why Is Gender Discrimination Not Prohibited by a Peremptory Norm of International Law. RJT ns, 48, 453; Charlesworth, H., & Chinkin, C. (1993). The gender of jus cogens. Hum. Rts. Q., 15, 63; and Askari, L. (1998). Girl's Rights under International Law: An Argument for Establishing Gender Equality as a Jus Cogens. S. Cal. Rev. L. & Women's Stud., 8, 3.)

Nevertheless, it should be pointed out that "Goal 5: Achieve gender equality and empower all women and girls" is one of the sustainable development goals of the United Nations (UN).

Popular Posts