The Need to Change The 1987 Constitution x
Chief Justice Reynato S. Puno (Ret.)
UP President Emerlinda Roman,
The Incoming UP President, former Regent Alfredo Pascual
The Honorable Chairperson and Members of
The Board of Regents,
Chancellor Sergio Cao,
Dean Marvic Leonen and
The Faculty of the UP
College of Law and fellow
students of law,
Distinguished guests especially
my colleagues from the
government,
Friends, ladies and gentlemen:
In the last few decades we have witnessed the birth of many “democratic states.” Statistics tell us that in 1914, with the disintegration of the Ottoman and Austro-Hungarian empires there were only 55 honest-to goodness states. Their number jumped to 59 in 1919, to 69 in 1950 and to 90 in 1960. When the Cold War ended, the number of democratic states skyrocketed to an unprecedented height. After the independence of East Timor in 2007, their total number is now 192.1 Some of these democratic states are now classified as failed states. Freedom House categorized most of these new states as only “partly free.”2 In the case of the Philippines, some scholars have started to cast a doubting eye on our capacity to comply with the essential requirements of democracy. As early as 2003,3 they warned against what they call as our “incubus of failure”. They noted our accumulating democratic deficits.
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X Jan. 11, 2011, UP Law Centennial Lecture,
UP, College of Law, Malcolm Hall.
- Rotberg, When States Fail, p. 2.
- Haynes, Developing World, pp. 1-5.
- Rotberg, ibid.
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The observation is far from flattering considering our checkered history of fighting for freedom and our elongated experience as a democratic nation. If we look at Asia’s pantheon of ideas, we will find that Jose Rizal, Marcelo del Pilar, and other Filipinos espoused the ideals of democracy ahead of their cerebral counterparts, Mahatma Gandhi included. Indeed, social scientists regard pre-Spanish Philippines as one of Asia’s early hatching ground of natural rights where the embryo of human dignity was nurtured even by its indigenous people.
It is thus no happenstance, that in Asia, we were among if not the first, to constitutionalize the basic rights of man, rights that were to define democracy. A blast from the past will refresh us. In November 1897, Aguinaldo declared our independence from Spain at Biak-na-Bato and adopted a constitution whose principal features were lifted from Cuba.4 In a month’s time, however, the Pact of Biak-na-Bato was signed and pursuant to its terms, Aguinaldo agreed to surrender, got exiled to Hongkong in exchange for amnesty, an indemnity of Php 1.7 M and the promise of rosy reforms.5 Thus, our first written constitution came to an end before we could savor our freedoms thereunder.
As fate dictated, the United States and Spain came to war and Aguinaldo and company were caught in the middle. Lured by a false sense, Aguinaldo fought side by side with the Americans against Spain. With the defeat of Spain looming as a certainty, Aguinaldo repaired to Kawit, Cavite on June 12, 1898 and boldly read the document entitled “Act of the Proclamation of Independence of the Filipino People,” which ruptured every relationship of the Philippines with Spain. At the foot of the Proclamation, it was curiously stated: witnessed by “the Supreme Judge of the Universe” and protected by “the Mighty and Humane North American Nation.” The new Philippine flag was unfurled and the newly minted national anthem was played. 6
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4 Kramer, The Blood of Government, p.81.
5 Ibid.
6 Ibid., p. 95.
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Aguinaldo’s dream that the “mighty and humane North American Nation” will recognize Philippine independence quickly metamorphosed to a nightmare. The US defeated Spain and declared its sovereignty over the Philippines. Thence on, all efforts of Aguinaldo to preserve the Philippine Republic went down the drain. But to his credit, Aguinaldo did one great act of significance to the development of constitutionalism in our country. He convened the Malolos Congress that drafted a new constitution patterned after the constitutions of Costa Rica, Guatemala, Mexico, Belgium, France and Brazil. It was principally prepared by Felipe Calderon with the sage advice of Cayetano Arellano. The Malolos Constitution was promulgated by Aguinaldo on January 21, 1899. UP historian, Teodoro Agoncillo, hailed the Malolos Constitution “as a great monument to the capacity of the Filipino people to rule themselves in a democratic way, “I quote him:7
xxx The Malolos Constitution was the first important state document that Filipino people, speaking
thru their representatives, ever produced. Democratically oriented, the Congress worked hard to have a Constitution for the people, which was democratic in its aspects. According to this Constitution, the government established was ‘popular, representative and responsible.” It was divided into 3 branches: The executive, the legislative and the judicial. The Constitution also provided for national and individual rights not only of Filipinos, but also of foreigners.xxx The Assembly had only one house… it was unicameral. The President was elected by the Assembly xxx. The department secretaries xxx were responsible not the President but to the Assembly.
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7 Agoncillo, Introduction to Filipino History, pp. 152-153.
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It is worth noting that under the Malolos Constitution, the Assembly was made more powerful than either the executive or the judiciary. Calderon explained why they tilted the balance of power in favor of the Assembly. They were afraid, he said, that if the executive branch became powerful, then the ignorant soldiers who were for Aguinaldo would dominate the government.8
Next, we orbited around the sun of sovereignty of the United States and we have to undergo the whitening of our brown democracy. President Mckinley formed the First Philippine Commission to study how a civil government would be established in our war-ravaged country. In its Report, the Commission stated that the Filipino people wanted above all “a guarantee of those fundamental human rights which Americans hold to be the natural and inalienable birthright of the individual but which under Spanish domination in the Philippines had been shamefully invaded and ruthlessly trampled upon.” Guided by this pious wish, President Mckinley, issued on April 7,1900 his instruction to the Commission that the civil government to be erected in the Philippines must be based on certain “inviolable rules,” by which he meant the Bill of Rights of the US Constitution. Hence, the Philippine Bill of 1902 which temporarily provided for the administration of a civil government in the Philippines carried these “inviolable rules” or Bill of Rights. Likewise, the Philippine Autonomy Act of 1916 or the Jones Law which called, among others, for an autonomous government for the Filipinos, contained these “inviolable rules” or the guarantees of the US Bill of Rights.
In 1934, the Philippine Independence Law or the Tydings-McDuffie Law was enacted. It guaranteed independence to the Philippines and authorized the drafting of a new Constitution for the Philippines. Two sine-qua-non conditions were imposed by the US --- first, the government to be established must be republican in character and second, it should contain a Bill of Rights. The delegates to the 1935 Constitutional Convention were elected and they chose the eminent Claro M. Recto to be its President. They drafted a Constitution that heavily borrowed democratic precepts from the US Constitution. The resulting Constitution was signed on February 19, 1935,
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8 Ibid., p. 153.
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approved by President Roosevelt on March 23, 1935 and ratified by a majority of the Filipino people on May 14, 1935. It served as our fundamental law even after the US granted our independence on July 4, 1946. Notably, it contained an Ordinance which granted US citizens equal rights as the Filipinos in the disposition, exploitation, development and utilization of our natural resources. This economic imposition lasted until July 3, 1974. Despite this economic imposition, the 1995 Constitution served us in good stead in rebuilding our country from the devastation of World War II. It catapulted us as among the leader countries in Asia in the decades of the 50’s and the 60’s.
In the 1970’s, our constitutional journey took an undemocratic detour. Then, President Ferdinand Marcos suspended the writ of habeas corpus and shortly thereafter proclaimed Martial Law, ostensibly to quell a communist rebellion and restore peace and order in the country. President Marcos used his extraordinary commander-in-chief powers even while a Constitutional Convention under the leadership of former President Diosdado Macapagal was in progress revising our 1935 Constitution. President Marcos’ exercise of emergency powers was upheld by the Supreme Court and the 1973 Constitution was ratified under contentious circumstances. The 1973 Constitution totally reorganized government, validated all the martial law decrees of President Marcos and allowed him to govern with unprecedented powers, including legislative powers.
It took years to bring down the authoritarian regime of President Marcos. One explanation for its long life was the Cold War between the US and Russia. Both superpowers unblushingly patronized client-countries even if they were ruled by dictators who showed no compunction butchering the rights of their people so long so they kept their loyalty to either country. The Cold War enabled all types and stripes of dictators to reign all over the world--- in Europe, the America, Africa and Asia, including the Philippines.
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In 1986, the regime of President Marcos came to an end. As is the usual case, it was cut down by a revolution of the people, miraculously a peaceful one. The revolution catapulted Corazon C. Aquino to the Presidency. During a short transition, she governed by means of decrees under a Freedom Constitution. She, however, immediately appointed commissioners to draft a new Constitution in lieu of our 1973 Constitution. The Constitutional Commission was headed by Cecilia Muñoz Palma, a retired Justice of the Supreme Court. Its draft Constitution was approved by the Commission on Oct. 12, 1986, signed on October 19, 1986 and was ratified by the people on the plebiscite held on February 2, 1987. The 1987 Constitution established a more democratic government by, among others, expanding the range of human rights of our people, rebalancing the powers of government, and giving the sovereign people more power to govern directly thru referendum, recall and initiative.
Given the age of the 1987 Constitution, the geopolitical changes going within and without the country, the question is whether there is now a need to reconfigure the Constitution to make it more responsive to the interest of our people. To be sure, the world has radically changed since 1987. The Cold War has been replaced by the war on terror which is eroding some of our civil and political rights. Communism collapsed and the visible hand that guided its economy has been ousted by the invisible hand behind free enterprise. Capitalism has gained a cultic following and is pushing governments to let loose its regulation of private interests. Globalization is resulting in the rise of supra regional arrangement of states like the European Union which is sapping the sovereignty of states. Certainly, these are changes which were not foreseen by our Constitutional Commission. In the home front, we see the defacing of our democratic facade. We have witnessed thru the years, the overt attempts at coup d’ etat by the military, its undemocratic role in regime changes, its unconstitutional coddling by leaders of government; we also saw the sickening deadlocks between the Executive and the Legislative especially in instances when the latter exercised its power to investigate in aid of legislation to crush corruption in government; we saw the raw use or misuse of the political power of impeachment by Congress; we saw the overarching exercise of the power of judicial review even on
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arguable political issues; we saw, the proliferation of political dynasties despite their prohibition; we saw the tightening of the stranglehold by monopolies and oligopolies; we saw the continuing marginalization of the masses by the elite that believe there is constitutional right to be selfish. In short, our declining democracy is not giving the people a responsive and responsible government. Unfortunately, due to impoverished public discussion, all attempts in the past to amend or revise the Constitution to strengthen our democracy have not taken off the ground. It is too tardy in the day to dissect the overt and covert political reasons for these failures but it is never too late to restart efforts to save our Constitution from irrelevance, strengthen our democracy and enable government to meet the felt necessities of our time. There is reason to believe that now is the perfect time to rekindle this thought for we have just elected a new President and inaugurated a new government. There is hardly any doubt about the pristine intention of our new President to make our democracy work for our people and it is our duty to help him succeed. I have been in government in all its branches for about forty years and with no exception, I say that our elected officials, early on their term, wanted to succeed in office and leave a legacy to our people. A lot of them failed, for their good intentions were devoured by a system of government that has been overtaken by time and corrupted by unscrupulous men.
The big question is …… how do we get out of the belly of the whale? My task is merely to provoke debate on the necessity of amending our 1987 Constitution, change some of its dinosaur ideas, improve its institutional mechanisms, all with the end in view of strengthening our democracy and constitutionalism. We need not change the Constitution from root to branches but merely diminish its defects. But we need a modified Constitution to guide our leaders for we cannot allow our leaders to govern by clairvoyance. Let us not be hogtied, let us not to be hobbled by orthodoxies for the first rule in the search for solutions to any problem is to be uncertain of the certain. Let me therefore pinpoint some areas of concern which are shared by others watching our difficult journey to democracy.
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First. Our representative system of government leaves much to be desired because more than 100 years after exercising our right to suffrage, our elections are still not free, fair and honest. This is a proposition that proves itself. It is futile to be blind to the fact that our elections are too expensive; they are often won by force or fraud; they are not issue oriented and they are more popularity contests where an unenlightened electorate usually trumps the enlightened. The result is a Congress, which is the domain of the elites and dynasties, where our Muslim and indigenous brothers are underrepresented. We need to amend the Constitution to give more reality to the political equality of our people, where the vote of each is of equal value with the vote of others. We do not have a representative government for significant sectors of our society are underrepresented or unrepresented in our policy-making institutions like the legislative. We have a synthetic democracy where the system allows our leaders to be elected not by the majority but a mere minority. A hallmark of democracy is rule by the representative of the majority and democratic majority includes not only the who is who and also the who is not in society.
Second. Our democracy is not only tainted by political inequality but also by a worsening social and economic inequality. A pestering social and economic inequality is anti-democratic and anti-republicanism. For they breed people who lack the capacity to exercise effectively their civil and political rights. Democracy is about who makes decisions and it cannot succeed in a setting where sovereignty resides in the many who are not free because they are uninformed. We need no evidence to prove these tearful facts: the eyeball evidence of the millions of Filipinos living below the poverty line stares at us everyday; just follow your nose, and their stench will lead you to their hovels they call homes. At the very least, there is a need to amend our Constitution in order to make some of the basic socio-economic rights of the people, like the right to education and the right to health, demandable from the state in the same manner as our civil and political rights are demandable from the government. Constitutions of countries like South Africa and India have treated these essential socio-economic rights as not merely directional in character but demandable from government for they are considered as requirements of democracy.
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Lack of finances did not deter them and their democracy became more vibrant. Unless we empower the many by improving their economic lot, we will continue to be ruled by a few who reject the ethics that enough is enough.
Third. The Presidential system of government has resulted in gridlock especially when the leaderships of the Executive and legislative departments belong to different political parties. These gridlocks usually prejudice the common good and result in bad governance.
We saw these gridlocks in the past when executive officials refused to obey the summons of Congress exercising its power of investigation in aid of legislation. These refusals shrunk the right of Congress in crafting laws, especially anti-corruption laws. These gridlocks will always stop the wheels of government from working and will not bring about a government that ought to work together for the people. Again, there is need to amend the Constitution to delineate more clearly the demarcation line between executive privilege and the power of the Congress to investigate in aid of legislation and avoid abuse in the use of the executive privilege and equally avoid the misuse the power to investigate. Will the adoption of a parliamentary form of government eliminate these gridlocks in a presidential system of government? Will it result in a more responsive government because the Parliament can be dissolved whenever the ruling party fails the people? Will it eliminate the threats of coup-d’-etat which are destabilizing to democracy? It is time to audit the merit of all of these arguments.
Fourth. We have a Judiciary that is not completely shielded from partisan politics. No ifs and buts about it, our Judiciary lacks financial independence. A judiciary with a bent back and a begging bowl is anathema to real democracy for it will have no backbone to check the excesses of the other branches of government. A Judiciary independent in paper but a pauper in reality is inimical to constitutionalism for it makes easy for unscrupulous politicians to whip judges to join their halleluiah chorus. It is bad enough for the judiciary to be begging Congress every year for a decent budget but it is worse, walking to the DBM on bended knees for the release of an indecent
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budget. This has resulted in the tragedy of the High Court citing the DBM for contempt and the greater tragedy of the Executive thumbing their nose to the High Court despite the citation for contempt. This, to my mind, is an unmitigated tragedy to the rule of law. We compound the problem when poverty drives the Judiciary to rely on the benevolence of foreign funders. Again, let us consider the suggestion that the Constitution should allow a certain irreducible percentage point of the budget for the judiciary and provide for its automatic release.
Fifth. There is need to strengthen the Judiciary by further depoliticizing appointments to the bench. Unless we can remove this virus of partisan politics, molecule by molecule, to disinfectin appointments to our Judiciary, our system of checks and balances will never fully work, again to the detriment of democracy. The Judicial and Bar Council can further diminish its vulnerability to partisan politics. Three of its members --- the Secretary of Justice, the representative of the Senate and the representative of the House --- are carriers of the virus, yet they can be the swing votes on who to include in the short list of nominees to be submitted to the President for appointment to the Judiciary. Even the regular members of the JBC representing the non-partisan stake holders of our justice system are not totally invulnerable to the arrows of partisan politics. They have an achilles heel which is the desire to be reappointed as members of the JBC and this desire needs fulfillment by bowing to political pressure. Again, these political vulnerabilities can be plugged by amending the Constitution and reviewing the composition of the JBC and the manner of appointment of its members.
Sixth. There is need to relieve the High Court of its clogged docket and prevent its packing by the appointing authority. Justice to be of real value to democracy must not only be fair but must be fast for if democracy is boring to the people it is because of justice that travels in the slow lane. It must, above all, be credible. Given the unceasing influx of new cases, the High Court will continuously be burdened with clogged docket, and time constraint is the womb of decisions poor in insight and short in foresight. The possibility of an incumbent President appointing all the members of the High Court during his or her incumbency has come to pass. Right or wrongly, it has raised
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quizzical eyebrows on the independence of the Judiciary. But, however it maybe, no democracy can succeed without a judiciary enjoying the trust of the people. Ours is the task to have a Judiciary without these burdens. One way to declog its docket is to amend the Constitution to delimit the High Court jurisdiction only to significant cases. We must also restrict its power so that it will not have the roving commission to review all acts of government on the ground of “grave abuse of discretion,” a term with an amorphous content. There is no democracy in the world where the Judiciary has been empowered to be the policeman of government. Also, the Constitution should be amended to prevent its packing by any President and thus, avoid the perception that courts are mere instruments and extensions of partisan politics. Again, we cannot afford a Judiciary with a cracked confidence.
Seventh. When representative democracy is not fully functioning, as in our case today, then the means by which the people themselves can exercise direct democracy should be improved. More than any of our Constitutions, the 1987 Constitution placed greater stress on the democratic nature of our state more than the republican character of our government. The Declaration of Principles and State Policies of both the 1935 and 1973 Constitutions simply state: “The Philippines is a republican state xxx.” On the other hand, the 1989 Constitution went further as it states: The Philippines is a democratic and republican State…” It is not hard to understand why the 1987 Constitution described our State first as democratic and then secondly, as republican. It is because our 1987 government was brought about by direct action of the people thru what has become known as the peaceful People Power Revolution of 1986. Consequently, the 1987 Constitution as well as its implementing laws introduced novel mechanisms by which the people can exercise direct democracy, together with the representatives they elected or despite of them, in case they default in effectuating their will and protecting their interest during their governance. Thus, for the first time, under the 1987 Constitution, the people gave themselves the direct power to propose amendments to the Constitution thru the process of initiative. Similarly, our laws now provide for the use of referendum by the people to resolve policy issues and the recall of some elected officials who perform below their expectations. Consistent with the democratic character of our State, the
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powers of the people to direct our government themselves should be expanded. There ought to be more liberal use of the referendum and a bigger coverage of our elected officials who can be recalled and the liberalization of the process of initiative in amending our Constitution. To put too much strictures in the right of our people in the exercise of direct democracy nullifies the spirit of EDSA and will bring us back to the misrule of leaders who betray the interest of the people.
The constraints of time shackle me from fingering other areas of concern. These additional areas are the systemic changes needed to address the unabated violations of human rights, changes to uproot the deep seated corruption in the bureaucracy, changes to make us globally competitive and, changes to provide a more flexible constitutional framework to accommodate the demands of insurgents and separatist groups but without compromising our general interest.
We elect our leaders and it is our duty to provide them a constitutional framework of government where it will be difficult for them to fail the people. I reject the argument that there is no urgency in amending the Constitution to arrest the decline of our democracy. We do not need a democracy in a stretcher. We cannot wait for our democracy to be in the ICU before calling the doctors.
I started by saying, I am only peddling proposals of change in the hope of provoking debates. If I have done anything correct this afternoon, it is to choose the University of the Philippines as the marketplace of discussion of these proposals. It is one venue where the irrelevant is not treated as irreverent, where there is no idea that is considered as inciting to sedition, where we are taught to doubt and to doubt, doubt itself.
Mabuhay ang UP, Mabuhay ang UP College of Law.
