[OPINION] A chance at deepening Filipino constitutionalism

Michael Henry Ll. Yusingco, LL.M

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[OPINION] A chance at deepening Filipino constitutionalism
The palpable disconnect between majority of Filipinos and the national charter is a huge problem and must be addressed directly and comprehensively

The 1987 Constitution is the utmost symbol of Philippine democracy. It is generally seen as the product of Filipino people power. 

Hence, it was utterly disappointing that a Pulse Asia survey in July 2016 revealed that 73% of respondents said they had little or “almost none or no knowledge at all” of the 1987 Constitution.

This palpable disconnect between majority of Filipinos and the national charter is a huge problem and must be addressed directly and comprehensively. Indeed, it is reason enough not to undertake constitutional reform until the gap is bridged, if not eliminated.

But the reality is the charter change process is already underway. The Consultative Committee on constitutional reform organized by President Rodrigo Duterte is already in the thick of drafting a federal constitution. And the only way to halt this process is for Duterte himself to give the order.

Ironically, those who oppose charter change actually want the President to wield his imperial power and stop the constitutional reform process. Without realizing it, by asking the President to do this, they are perpetuating the very wrong constitutional reform aims to correct, a very powerful chief executive dominating everyone else.

A further irony is their use of a recent Pulse Asia survey showing that 64% of respondents are not in favor of amending the 1987 Constitution as justification for Duterte to terminate the Consultative Committee’s work.

If 73% of Filipinos have little or “almost none or no knowledge at all” of the 1987 Constitution, then the correct response is to do more work in educating Filipinos about the national charter. It will be more logical then to urge the Consultative Committee to devote more time and effort in enlightening the public about constitutional reform than to simply just call for its abolition. By stopping the charter change process now, we all lose the chance at learning more about the 1987 Constitution.

Moreover, to assert that the constitutional reform process should cease because 64% of Filipinos are against it is a disservice to the country. Our collective goal should be to remedy the lack of knowledge and awareness about the 1987 Constitution among Filipinos. Intelligently engaging the Consultative Committee in its drafting of a federal constitution is a clear path towards this end. Again, refusing to participate in the constitutional reform discourse is a wasted opportunity to know the 1987 charter more intimately.

There are many aspects which Filipinos can be proud of about the 1987 Constitution. For instance, the entrenchment of social justice and human rights in Article XIII. But even its most ardent defender, former chief justice Hilario Davide Jr, agrees that our current charter is not perfect. The reality is 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.

The recent Supreme Court decision on the quo warranto petition against Chief Justice Maria Lourdes Sereno revealed one. A judicial review system that fosters “the Constitution means what the Supreme Court says it means” mindset. This system has become fatal because the community now sees this privileged standing of the Supreme Court as exploited often for purposes of personal vendetta and political accommodation.

More problematic, however, is the High Court’s penchant for writing decisions exclusively for students of the law. It uses high-brow legal reasoning which never contributes to the constitutional education of Filipinos.

Accordingly, a public discourse on charter change should also involve identifying, and analyzing, what these pathologies are. 

I am certain that members of the Consultative Committee would have wanted more time to diagnose pathologies in the 1987 Constitution before even commencing the formal constitution-writing process. But they have been specifically tasked by the President to draft a federal constitution by June. The committee is therefore constrained to simultaneously review the charter and write the appropriate revisions.

Nevertheless, as responsible citizens we must deeply reflect on our national charter. We must ask ourselves these two questions the Senate committee on constitutional amendments asked its resource persons:

1. Is there a need to amend or revise the Constitution? Why or why not?

2. If so, what parts of the Constitution should be amended or revised? Why?

And to make the constitutional review process truly robust, we should discuss our answers with family and friends, in our school organizations, in our work, and even in our place of worship. Then let us bring all our concerns, questions, and recommendations to the Consultative Committee. 

In fact, another issue highlighted by the Sereno decision which we can ask the Consultative Committee to address is the fragility of our system of separation of powers. Executive authority designed by the 1987 Constitution has given life to a president who is so powerful that the lawyer for the Government of the Republic of the Philippines, like everyone else within the central bureaucracy, functions at his beck and call. Ostensibly, the checks and balance constitutional arrangement will always be under threat under an imperial president.

It cannot be emphasized enough that the responsibility of rejecting or ratifying changes to the 1987 Constitution still belongs to all Filipinos. Hence, there is a need to be actively engaged as early as the drafting process if indeed a proposed draft is brought before the people in a plebiscite.

Filipinos must follow the work of the Consultative Committee religiously. Right now, it is only their draft that should matter to us. The work of the PDP-Laban Federalism Institute is essentially a discarded draft. While the Senate has no proposal to offer yet, the House of Representatives has been dubiously coy about theirs. They have only released the highlights of a purported committee report. Nothing official that we can be bothered about. 

The Consultative Committee may finish its draft as scheduled but this does not automatically mean that constitutional change will proceed this year. For the reality is, even with the cooperation of both chambers of Congress, constitutional hurdles may delay the process, if not halt it altogether. 

Nevertheless, a thorough public discourse about constitutional reform still benefits Philippine constitutional democracy because it will leave more Filipinos with a deeper appreciation of the 1987 Constitution. –

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