Duterte’s novel: the federal constitution

The legal philosopher Ronald Dworkin once compared a constitution to an unfinished chain novel. In line with his analogy, Dworkin viewed constitutional interpretation as an act that resembles the writing of a new chapter that moves the narrative forward.

Like a novelist who takes up the writing of a story in medias res, the interpreter of the constitutional text is bound by the old chapters’ plot, setting and characters. He cannot suddenly rewrite an El Cid into a Don Quixote. He cannot arbitrarily turn an epic into a melodramatic romance. His freedom to write a chapter is therefore limited. He must fit his new chapter into the old structures of the text as written and construed by the framers and earlier interpreters.

President Duterte’s impatience with the 1987 Constitution is therefore understandable.

From the literary viewpoint, changing or revising a constitution is like throwing away the old novel and writing a new one. The President no longer wants to be constrained by the textual and interpretative fetters of the old novel. He simply wants to write a new story.

The new constitution, however, must offer us a preliminary narrative. It must offer us an arresting and interesting story, a story that we would want to believe and, perhaps, develop by thickening its plot, making it more complex, and, ultimately, embrace as a national narrative.

A narrative acceptable to the people is imperative, lest we forget that most constitutions are founded on the ultimate fiction that it is the people, not the Speaker of the House, who speak through the constitutional text. Preambles of state constitutions now follow the American precedent of starting the text with the words “We the People.” Even constituent treaties of international organizations have followed suit. The fiction of the people as author of the constitution is now established as a legitimating and enabling fiction.

Indeed, constitutions are often undergirded by narratives. These narratives have their own heroes and villains. The American Declaration of Independence faults the British Monarch for “repeated Injuries and Usurpations.” The Constitution of the People’s Republic of China narrates the heroic effort of “the Chinese people … led by the Chinese Communist Party” in crushing imperialism and feudalism.

The 1987 Constitution is no exception. From its preamble to its last transitory provision on sequestration orders, the story of Edsa permeates its whole textual body. The Edsa narrative, that is the history of struggle against the Marcos dictatorship, so animates the Constitution that its replacement can only be construed as a rejection of the narrative of struggle that has bound the nation in the past 30 years.

At this moment, this antidictatorship narrative is at its lowest point. The electoral fortunes of the Liberal Party in the 2016 presidential election have reduced, if momentarily, the narrative’s persuasive power. At the height of the second Aquino presidency, the Liberal Party partly usurped Edsa’s narrative and so discredited it with the ignominy of defeat.

We all know, of course, that no political party can monopolize the antidictatorship narrative. The struggle against the Marcos dictatorship was a people’s struggle. It was a noble cause that attracted the lowly, the believer, the intelligent, the quixotic or, simply, the decent. The narrative belonged to a nation in rebellion.

It is against the residual powers of this antidictatorship narrative that President Duterte’s new novel must contend with. The proposed federal constitution therefore cannot simply be based on a narrative of resentment and fear that carried the Duterte campaign to victory. Most importantly, it must rely not on the narrative of power, but on the power of a nobler narrative.

Jose Duke S. Bagulaya is assistant professor of comparative literature at the University of the Philippines Diliman and works as a lawyer in his spare time. He is currently a PhD student in the Faculty of Law, The University of Hong Kong.