[OPINION] Constitutional reform in the Philippines is necessary

Michael Henry Ll. Yusingco, LL.M, Michael Henry Ll. Yusingco
[OPINION] Constitutional reform in the Philippines is necessary
Most constitutional scholars agree that a constitution is never infallible or immortal. Our very own 1987 Constitution is no exception.

For many Filipinos, charter change is now a very serious political issue. 

Recall that President Rodrigo Duterte assumed office in July 2016 with the commitment to shepherd the transition of the Philippines to a federal form of government, an undertaking that requires a complete overhaul of the 1987 Constitution. 

A majority of the population are still not behind charter change and this has always energized opposition against this initiative. Notably former Chief Justice Hilario Davide Jr who claims the 1987 Constitution is “the best for our country and our people not just of this generation but even for generations yet unborn” and thus does not need any amendment.

Most constitutional scholars, however, agree that a constitution is never infallible or immortal. These experts assert that some provisions in the constitutional text itself, while may have been designed with good intentions, can eventually become debilitating to the political system it purports to govern. Our very own 1987 Constitution is no exception.

Imperial president in the charter

For example, the way executive power is articulated in Article VII. Consider first Section 1 which states that, “The executive power shall be vested in the President of the Philippines.” This provision vests executive power not in the office of the president but in the person occupying the office.

Then read this provision in conjunction with this specific portion of Section 16, “He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint.”

The power to appoint officials in the executive branch is part and parcel of the executive power. But pursuant to this constitutional provision, the president of the Philippines has complete and almost limitless authority to appoint officials within the executive branch. He appoints for practically all positions in the central bureaucracy including the armed forces and the police.

The exclusive vesting of executive power in the president means that he can overturn the decisions of any officer within the executive branch. The president can substitute his own view on any issue over that of his subordinate. Indeed, he has sole control over the entire executive branch from department secretaries down to the rank-and-file.

Correspondingly, the president has a direct hand in all matters of government. From public housing to agriculture to solid waste management to foreign investment to tax collection to sports to water management to foreign trade and affairs, and so forth. Crucially, control over and dispersal of public funds is also heavily concentrated in his office.

The very text of the Charter conveys the immense power the president wields. And the overcentralized governance structure many Filipinos complain about is actually a result of the way executive authority is expressed in the 1987 Constitution.

It is worth highlighting, therefore, that if the goal of constitutional reform is to decentralize governance, then the articulation of executive authority should also be changed.

Filipinos’ disconnect with the Charter

While a reasonable argument for constitutional reform can indeed be made, there is still a fundamental obstacle to reckon with. The fact that the Pulse Asia Nationwide Survey on Charter Change in June 2018 revealed that 75% of respondents said they had little or “almost none or no knowledge at all” of the 1987 Constitution.  

In the context of constitutional reform, this finding poses a huge problem. How can any reform process ever be truly robust when there is a glaring disconnect between majority of Filipinos and the 1987 Constitution? The plain fact is Filipinos have never been in the position to intelligently decide whether charter change is needed or not. 

Therefore, as the administration actively pushes to revise the 1987 Constitution, the bitter and painful memories of how the 1973 Constitution was ratified compels respect for 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. 

Notably, according to the United Nations Assistance to Constitution-making Processes (April 2009), “A genuinely inclusive and participatory constitution-making process can be a transformational exercise. It can provide a means for the population to experience the basics of democratic governance and learn about relevant international principles and standards, thus raising expectations for future popular engagement and transparency in governance. Inclusive and participatory processes are more likely to engender consensus around a constitutional framework agreeable to all.”

Clearly, an indispensable precondition of constitutional reform in the Philippines is a widespread and substantial public consultation process. And given the reality that 3 out of 4 Filipinos know very little about the current charter, a key element of this process must be a back-to-basics education on the 1987 Constitution. 

For this particular approach, the President can commission law schools to assume the lead role. This is certainly a daunting imposition but warranted nonetheless under the Volunteer Act of 2007. 

The education sessions can be undertaken via the barangay assembly apparatus. Note that by statutory mandate the barangay is also a “forum wherein the collective views of the people may be expressed, crystallized and considered.”  

Necessary constitutional reform process 

Ostensibly, the detailed mechanics of the education sessions themselves shall be the responsibility of each law school involved. But the core syllabus must cover two stages. The first one is a remedial class reviewing two basic components of the Constitution: 1) Responsibilities of each branch of government and the constitutional offices; and, 2) Rights and obligations of citizens. 

The second stage is an open forum to be guided by these questions: “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?”

At the end of the sessions, each barangay assembly must produce a position paper answering these questions which shall then be formally endorsed to Congress to be utilized as resource materials. 

The first half of 2018 can be used for the nationwide constitutional education phase. The barangay assembly position papers can be formally endorsed during the State of the Nation Address. Congress can thereafter focus on the revision process, as guided by the barangay assembly submissions, until the end of the year.

Constitutional reform in the Philippines is absolutely necessary. However, charter change should be undertaken only when more than 75% of Filipinos are deeply connected to the 1987 Constitution.  Sadly, for the moment, this is not the case. – Rappler.com

Atty Yusingco is a non-resident research fellow at the Ateneo Policy Center of the Ateneo School of Government.

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