Defending one word in the Constitution

Few recall that our Constitution reads: “The Armed Forces of the Philippines is the protector of the people.” This line in Article II, Section 3 is never highlighted in freshman law classes. And only two recent Supreme Court opinions cite it, in passing.

In the 2008 MOA-AD decision, Acting Chief Justice Antonio Carpio’s concurring opinion argued that a proposed Bangsamoro Juridical Entity would unconstitutionally reduce the Armed Forces’ role.

In the 2017 martial law decision, Justice Presbitero Velasco’s concurring opinion used it to punctuate officers’ responsibility during martial law.

Law students largely remember it as bar exam trivia, after a freak 2003 question asked to explain it (as confirmed by my old colleague, Prof. Manny Riguera of Jurists Bar Review).

The sentence has no legal effect. It is seeming surplusage, purely decorative.

Yet when the consultative committee (ConCom) proposing changes to the

Constitution removed the obscure sentence in their draft, Armed Forces chief Gen. Carlito Galvez Jr. gently requested that it be retained.

“It’s a great pride for the Armed Forces being the protector of the people,” he stressed. “That mandate is very noble to us.” Troops are at the forefront of saving lives even in natural disasters, he added.

A ConCom member said they consciously changed it to “the government is the protector of the people.” Coup plotters and mutineers had invoked the statement as a pretext to protect the people from their own government.

This sentence arose from the personal opinion of 1986 Constitutional Commission member Fr. Joaquin Bernas added in his textbook, describing “a last resort—when civilian authority has lost its legitimacy.” But Bernas made it clear the 1987 Constitution’s authors never discussed this. Rather, they intended a positive exhortation to the military to never
repeat the abuses of martial law.

I always thought the sentence immortalizes the military’s role in the 1986 Edsa Revolution. Hundreds of thousands formed human barricades to protect rebels led by Defense Minister Juan Ponce Enrile and Gen. Fidel V. Ramos. Marines refused to fire on the crowds, and tanks stopped when nuns knelt in their path, leading to the peaceful revolution. Our military’s most heroic moment came when it chose not to fight.

General Galvez’s rebuke emphasizes how different our Constitution is from other laws. Its words do not merely lay down legal rules. They are highly symbolic and aspirational. They enshrine our most deeply held values.

It also emphasizes how difficult it is to revise a constitution. Even a one-word change is pregnant with meaning, and must respect tradition that has evolved around the original language.

Indeed, seemingly minor ConCom additions have broad effects and bear the intellectual fingerprints of my libertarian idol, ConCom chair and former chief justice Reynato Puno.

Applying the Bill of Rights to both government and private parties radically expands it. Qualifying separation of church and state with Puno’s signature doctrine “benevolent neutrality” emphasizes religion’s role in public life. Making data and informational privacy explicit in the Constitution strengthens what was previously drawn from court decisions and statutes.

Any one of these seemingly minor changes could be debated for months.

Finally, General Galvez’s rebuke demonstrates the most beautiful feature of a Constitution: It is not written for lawyers, scholars and statesmen, but for ordinary citizens.

Recall the gallantry of the likes of Pfc. Dhan Ryan Bayot, who was surrounded in last year’s Marawi siege and requested a strike on his own position.

General Galvez could well argue that if Bayot’s comrades return home and sit beside sons and daughters reading the Constitution for the first time in elementary school, they deserve to be able to read out that obscure sentence.

Not even the most learned scholar who has read every constitutional treatise in the world could possibly argue.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.