Rewriting the Constitution

The Philippines is on the verge of rearranging the constitutional order. As pioneer of representative democracy in Asia, the nation cannot afford to do away with constitutionalism lest anarchy prevail. A constitution, by its function, is the soul of a nation.  A people can only be or achieve as much as their fundamental law will allow.

The traditional functions of a constitution can be lumped into four categories. The first function is a limitation on government authority. The Bill of Rights, limitation on public expenditure, and nationalization limits for certain economic endeavors are some provisions that satisfy the first function.  The second function defines nationhood and the people’s aspirations.  The provisions on national territory, state principles and policies, citizenship, and suffrage serve the second function. The third function defines the pattern of authority and setup of government institutions. The provisions on the presidency, legislature, judiciary, constitutional bodies, and local government fulfill this third function.  And the fourth function defines the manner of revising the constitutional form.

The 1987 Constitution prescribes three modes of rewriting it: a constitutional convention, Congress convening as a constituent assembly, and a people’s initiative. A fourth mode of rewriting constitutional form, recognized in international law but unwritten in a constitution and thus discouraged, is a people’s uprising.  The Philippines once did it with the post-Edsa Freedom Constitution.

The revision of the Constitution by constituent assembly has merit and demerit. It is cost-and time-efficient because it obviates the need to elect a new set of framers, unlike a constitutional convention. But operationalizing a constituent assembly may prove tedious. The present Constitution does not provide for the manner of voting by the bicameral legislature which will morph into a singular body.  If the assembly will vote jointly, the value of the vote of the Senate will be emaciated given the sheer number of its counterpart in the other chamber. There is also the thesis that since the legislature votes separately in enacting a statute, a fortiori, it must so vote in crafting a constitution, a greater enactment. If the two chambers cannot agree on the manner of voting, the issue will reach the Supreme Court. The revision process can hit a snag.

Proponents of constitutional change are focused on the allocation of powers and resource-sharing via a shift from a presidential to a federal form of government.  The proposed shift is a “state of states,” with the latter devoid of external sovereignty and mainly concerned with parochial interests. The shift will give way to the dispersal of centers of power and self-governance.

The federal state may take responsibility for foreign relations, external defense, external debt and trade, enforcement of federal law, administration of federal justice, federal taxation, customs and immigration, monetary system, higher education, regulation of professions, electoral processes, environment and disaster management, and exploitation of resources in the exclusive economic zone and extended continental shelf. The constituent state can be fully autonomous with responsibility over domestic concerns, such as marriage, civil registry, property, inheritance, contracts, terms of employment, business regulation, local taxation, local law enforcement, and basic services.

Major concerns for the revisionists would be achieving a just approach to the Regalian doctrine; the type of autonomous government; the economic model for the constituent states; and sharing the burden of external debt. An equitable shared entitlement to the natural resources must be fleshed out between the federal entity and constituent states.  The framers may also look into the Basque foral system of autonomy as a political model.  The Singapore economic model, which could usher the constituent states into a manufactured exports-based economy, also deserves a good look. As for foreign debt, “who gets to pay how much and for what” will truly be a conundrum.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.