ARE FILIPINOS READY FOR CONSTITUTIONAL REFORM?

The 1987 Constitution is considered one of the most enduring constitutions in the world because it has stood for almost three decades without any amendment. This is an odd quality considering that most constitutional scholars will agree that a constitution is never infallible or immortal even as they continue to debate amongst themselves the ideal lifespan of a nation-state’s charter.

But none of these experts will ever deny that pathologies in a constitution can emerge during its reign. These pertain to provisions in the constitutional text itself that may have been designed with good intentions but have eventually become debilitating to the political system it purports to govern. Our very own 1987 Constitution is no exception.

Indeed, Dr. Raul C. Pangalangan, the former dean of the University of the Philippines College of Law and presently a judge in the International Criminal Court, has proffered an organic irregularity in our nation’s fundamental law, a “built-in contradiction between the economic and the governance clauses of the constitution.” The Constitution’s passionately nationalist stand with regard to socio-economic matters and its avowed protectionism against foreign interests seems to project a partiality for an “expanded state.” Yet in allocating governmental powers, a maze of check and balance provisions have been instituted to actually form a “shrivelled state.” Essentially, the Constitution has established a schizophrenic state which is a sad reality that clearly yearns for remedial action.

Needless to say, diagnosing pathologies in our constitution is a gargantuan task. And as former House Speaker Sonny Belmonte himself has learned from his "economic" amendments debacle in 2015, mere determinations from politicians and interest groups, no matter how well-thought and presented, will not be credible enough for the general public.[1] And it is particularly interesting to ask why after all these years, and after all the critiques launched at the 1987 Constitution, is still there a passionate distrust for moves to amend or revise our constitution?

The answer perhaps lies in our unresolved issues with the Martial Law period. Indeed, the immediate reaction to doubt charter change advocates implanted by the case of Javellana vs. Executive Secretary has not been lost with the passage of time.[2] Note that the Supreme Court in this case actually ruled that Ferdinand Marcos, Sr. railroaded the adoption of the proposed Constitution in 1973. The citizens’ assemblies he organized, where the ratification of the proposed charter was determined by a show of hands, were declared improper and could not be the basis to legitimize a constitution. In fact, the high court opined that this exercise was an absolute farce, not only because of its inherent inanity but, more so, because Marcos’ guns and goons were outside the halls where these assemblies were held—a scenario that obviously precluded any legitimate outcome arising from the process.

And yet, legal scholar Professor Dante Gatmaytan-Magno points out: “In Javellana, a majority of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because the constitutional requirement of two-thirds of the Court voting to declare a law unconstitutional was not met, the Court also concluded that the new charter was already in effect. That decision allowed Marcos to govern under a dictatorship until he was forced out of office in 1986. Since that time, the Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy. Many wonder if the Court will allow itself to be used in a similar fashion at some point in the future—or the present.”  

Pertinently, the professor’s apprehension over the possibility that the Supreme Court will again lose its constitutional fortitude has been affirmed by the recent decision in the case of Enrile vs. Sandiganbayan to allow an accused plunderer, Sen. Juan Ponce Enrile, to post bail.[3] The public was clearly dismayed by the high court’s preferential treatment of the veteran lawmaker. This disappointment was exacerbated by commentaries from a host of legal scholars showing that the decision actually ignored the parameters on the right to bail established in Article III, Section 13 of the Constitution. And so with flouting the rule of law at the top level of the judiciary still possible, the Filipinos’ serious anxiety over charter change seems justified.

Yet paradoxically, even with this profound trepidation concerning constitutional reform, there is now a growing number in the polity who are convinced that this undertaking is a worthy and even necessary pursuit. The pathologies in the 1987 Constitution are truly getting harder to ignore. Nonetheless, the bitter and painful memories of Martial Law should compel us to respect a very important requirement. In order to produce an accurate and truly legitimate outcome, the reform process must involve the ardent participation of the people themselves.  Indeed, according to the United Nations Assistance to Constitution-making Processes (April 2009), “Constitution-making presents moments of great opportunity to create a common vision of the future of a state, the results of which can have profound and lasting impacts on peace and stability.” Hence, any attempt at charter change without going through any form of comprehensive public discourse must be rejected.

Accordingly, constitutional reform contemplated by the new administration should begin with diagnosing further pathologies in the 1987 Constitution to be carried out via a widespread and substantial public consultation process. Issues such as expanded regional autonomy for Mindanao and the Cordillera, blanket prohibition on political dynasties, further economic liberalization, consolidation of social safety-nets, electoral reforms, and so forth, must all be exhaustively threshed out by the people in this nation-wide political exercise.

Concretely, and ironically if I may point out, these “diagnostic” sessions can be undertaken via the barangay assembly apparatus. Although dissecting constitutional issues pertaining to good governance, economic prosperity, liberal democracy and social justice does not exactly fall within the powers of the Barangay Assembly, the reality is this mechanism is still the most convenient way to gather ordinary citizens and give them the opportunity to speak out and be heard.   After all, by statutory mandate the barangay is also a “forum wherein the collective views of the people may be expressed, crystallized and considered.” More importantly, at this stage in our democratic evolution, I am confident Filipinos will no longer allow Marcos-style machinations to subvert the popular will.

Additionally, President Rodrigo Duterte can by executive fiat commission law schools to assume the role of moderator in these consultations. This is certainly a daunting imposition but warranted nonetheless under Section 5(a) of the Volunteer Act of 2007 which states, “Volunteerism in the academe includes, but is not limited to, provision of technical assistance and sharing of technology within the academic circle, target communities and other clienteles and the upgrading of the quality of education and curriculum methodologies while providing career enhancement and exposure to the volunteers”.

The fact is law schools are the only institutions in the country where constitutional professionals, so to speak, are produced. Their knowledge in constitutional reform forms part of legal “technology” which they can share to the local communities where they belong.    

Ostensibly, the detailed mechanics of the consultation sessions themselves shall be the responsibility of each law school involved. But the targeted output should be a position paper outlining pathologies in the 1987 Constitution and the concomitant remedial action that must be undertaken. These position papers will then be formally endorsed to Congress to be utilized as resource materials in the revision process.

More importantly, this undertaking can also function as a massive civic education campaign on constitutional principles for local communities. I really believe Filipinos need to go through this gauntlet first because their comprehension of the 1987 Constitution is dubious. I am boldly making this supposition because I know for a fact that many Filipinos are not aware of the significance of February 2.

To remember this particular date is extremely important because it is said that a nation’s relationship to its constitution plays a huge part in its evolution as a democratic republican state. A country that genuinely values its constitution would be more orientated towards the rule of law than one that does not. Indeed, a society that truly believes in constitutional values will be most likely more inclusive than one that does not. Therefore, a nation which treats its constitution both as a foundational document and as an existential guide to political life will be at a high stage of democratic maturity. Sadly, Filipinos may not be at this level yet. Let me elaborate on this further.

Pursuant to Proclamation No. 211 series of 1988 issued by President Cory Aquino, February 2 is officially designated as Constitution Day in the Philippines. The purpose of establishing this special day is as follows—

“WHEREAS, in order to instill in the hearts and minds of the Filipino people the democratic principles and the noble and lofty ideals enshrined in the Constitution, it is but fitting that a day be set aside as CONSTITUTION DAY to give the Filipino people the opportunity to consecrate and dedicate themselves to the Constitution and ponder on the significance thereof.”

I conducted an informal survey in my immediate community to determine the level of awareness about our nation’s Constitution Day. The results are pathetic and revealing at the same time. An uncle of mine summarized it quite well—“The meaning of Constitution Day to many of our people is as murky as the polluted Pasig River.”

Relatives who work in government have told me that they do not do anything special to commemorate Constitution Day. Colleagues and friends employed in top universities in the country told me exactly the same story. Surprisingly, it seems that even law schools do not even recognize the significance of this day. And it is deeply unfortunate that primary and secondary schools do not use this occasion to improve our youth’s knowledge and comprehension of our Constitution. However, the most disappointing result is that practically all of the people I asked were not even aware that February 2 is designated as Constitution Day.

The 1987 Constitution is the utmost symbol of Philippine statehood. It is the central institution in our political system. Hence, it is utterly incredible how February 2 easily slips past our collective minds every year. It becomes even more embarrassing knowing that both our former colonizers actually celebrate a Constitution Day.  Americans celebrate this occasion on September 17. Curiously, this holiday is not observed by giving the day off to workers. The significance of this day is commemorated by (re)educating the populace about the United States Constitution. Government institutions are required to hold programs that highlight the history of the American Constitution. Schools and universities are likewise obliged to conduct activities that promote the values and principles enshrined in the constitution. One the other hand, Spain celebrates its Constitution Day on December 6. Not surprisingly, this day means no work for all people. Nonetheless, this time is also used to enhance the community’s understanding and appreciation of the national constitution.

Given the ignorance and indifference to our Constitution Day unravelled by my informal survey, it appears that the “democratic principles” and the “noble and lofty ideals” enshrined in this sublime document are not yet properly instilled in our hearts and minds. I predict however that after undergoing the process of diagnosing pathologies in the Constitution, Filipinos from Batanes to Tawi-Tawi, will be able to see themselves not merely as passive observers in the sidelines but as continuing stakeholders to the enforcement of constitutional rules and tenets. And I genuinely believe that it is only upon reaching such a level of constitutional awareness can Filipinos confidently initiate the revision process under Article XVII.

Furthermore, our experience with commencing constitutional reform limited by a fixed timetable should be a stark lesson. In this regard I note the utter regret of Rene Sarmiento, a member of the 1986 Constitutional Commission, over the decision to just rely on Congress to enforce through legislation certain fundamental directives in the charter (i.e. prohibition against political dynasties).[4] The former COMELEC Commissioner lamented, “There was political instability, coups were being staged. There was an urgency to stabilize the country and we were pressed for time.” Poignantly, Sarmiento now admits that, “We did not foresee that after EDSA 1, change will take time.”

Such a realization is indeed an important caveat for all of us contemplating a complete overhaul of our current charter. The 1986 Constitutional Commission worked under an urgent deadline and that was to legitimize the revolutionary government of President Cory Aquino. But we should recognize that we are certainly in a more fortunate position now because there are no reasons or contingencies that compel us to rush constitutional reform.  

[1] The President of Ateneo de Davao University, Fr. Joel Tabora, SJ, wrote an impassioned and scathing piece, Gang Rape of the Constitution, railing against the aborted plan of Speaker Sonny Belmonte to amend “economic” provisions in the Constitution. See https://www.manilatimes.net/gang-rape-of-the-constitution/189966/.

[2] G.R. No. L-36142 (March 31, 1973).

[3] GR No. 213847, Aug. 18, 2015.

[4] Aries Rufo, “EDSA’s failed legacy: Political dynasties”, Rappler, February 23, 2013, https://www.rappler.com/newsbreak/22459-edsas-failed-legacy-political-dynasties.

[Photo source: https://www.gov.ph/constitutions/constitution-day/]