[OPINION] Diagnosing pathologies in the 1987 Constitution

Michael Henry Ll. Yusingco, LL.M, Michael Henry Ll. Yusingco

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[OPINION] Diagnosing pathologies in the 1987 Constitution
Essentially, the Constitution has established a schizophrenic state which is once again a sad reality that clearly yearns for remedial action

The 1987 Constitution is considered one of the most enduring constitutions in the world because it has stood for 31 years 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 among 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.

A very obvious one pertains to the quality of government the republic should have. The Preamble is very explicit about the Filipinos’ desire “to establish a Government that shall embody our ideals and aspirations.” Of course, a corollary of this goal is the intent “to prohibit political dynasties” in Section 26 of Article II.

No need to elaborate here but the current government framework certainly does not embody our ideals and aspirations while traditional elites continue to have a firm chokehold on the country’s political system. These two unfortunate realities clearly point to an anomalous area in the 1987 Constitution that begs to be addressed.

Raul Pangalangan, former dean of the University of the Philippines College of Law and presently a judge in the International Criminal Court, proffered a more organic irregularity in an article published in the National Taiwan University Law Review [Vol. 4: 3, 2009], wherein he wrote about a “built-in contradiction between the economic and the governance clauses of the constitution.”

According to Pangalangan, the Constitution’s passionately nationalist stand concerning socioeconomic 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 once again a sad reality that clearly yearns for remedial action.

Obviously, diagnosing pathologies in our Constitution is a big task. And as we have learned from the “economic” amendments debacle in 2015, mere determinations from politicians and interest groups, no matter how well-thought-of and presented, will not be credible enough for the public.

The reality is, in order to produce an accurate and truly legitimate result, the charter change process demands 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.”

Therefore, it would benefit Filipinos immensely if this charter change (cha-cha) effort being pushed by President Rodrigo Duterte is complemented by the process of identifying aspects of the 1987 Constitution that require remedial action. This task now belongs to the Consultative Committee (Con-Com) and the Department of the Interior and Local Government (DILG).

So instead of undertaking a roadshow merely promoting the Bayanihan Federalism draft proposal, they can carry out a genuine widespread and substantial public consultation process wherein issues such expanded regional autonomy for Mindanao and the Cordillera, regulation of political dynasties, targeted economic liberalization, consolidation of social safety nets, electoral reforms, and so forth, can all be exhaustively threshed out by the people.

To ensure these consultation sessions achieve its purpose, the Con-Com and the DILG can tap law schools to assume the role of moderator. Notably, this daunting imposition is warranted 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.

Furthermore, these “diagnostic” sessions can be undertaken via the barangay assembly apparatus. Admittedly, 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 under the Local Government Code (LGC).

But 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, the LGC itself considers the barangay as a “forum wherein the collective views of the people may be expressed, crystallized and considered.”

Ostensibly, the detailed mechanics of the sessions themselves shall be the responsibility of each law school involved. But the output for each barangay should be a position paper outlining pathologies in the 1987 Constitution and the concomitant remedial action that must be undertaken.

These reports can then be formally endorsed to the Con-Com and the DILG to be synthesized and handed over to either the Constituent Assembly or the Constitutional Convention to be utilized as resources in the revision process.

Finally, this massive undertaking can also function as a condensed civic education program for local communities. I anticipate that after undergoing this cathartic political exercise, Filipinos will fully realize the magnitude of revising the 1987 Constitution.

Specifically, I expect they will get to understand that the proposal is to shift from the unitary system, which is the way the country has been governed for centuries, to a federal setup, which is a government system many of us have paid attention to only when President Duterte assumed office two years ago. (READ: 4 things you need to know about Duterte Con-Com’s draft constitution)

Clearly, the disruption caused by charter change will be immense. For this reason alone, all Filipinos should be keen to understand the federal system. But more critically, Filipinos must realize that each one of us has an important stake in the transition process. Because if this is not managed well, the dark prophecy of former chief justice Hilario Davide Jr about federalism could come true. – Rappler.com

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