Constitution: Designed to fail?

That, essentially, was the assertion of quite a few critics of the present Constitution since the 1990s. Over time, I have come to believe a more accurate characterization of it is that it is proof of the problem of unintended consequences. While the political scientist David Wurfel argued that the 1987 Constitution was what the 1973 Constitution would have been if the 1971 Constitutional Convention hadn’t been hijacked by President Marcos Sr., still, it was a product of its time and its time of creation came after, and not before or during, the dictatorship. As I’ve argued elsewhere, at its core were three definitively post-Marcos goals: the first, to channel people power into institutions; the second, to make official accountability more accessible and limit the executive; and third, to institute an activist judiciary to uphold rights. The story of the past three decades has been the ability of the political class to evolve to circumvent and defeat each of these goals, not least because flaws in the design of the Constitution made it impossible for even its defenders to do anything more than preserve it, rather than find ways to improve it. The result was that it fostered the radicalization of public opinion away from liberal democracy.

A quick case in point of unintended consequences. Design can influence behavior. An operating system, which is how most of us understand what a constitution is, that does not contain within itself the means to update and refresh itself, is a system doomed to fail by its very design. As Fr. Joaquin Bernas explained, the constitutional provisions for amending the Constitution were written with a unicameral legislature in mind and left it intact even after the Constitutional Commission ended up deciding on a bicameral legislature rather late in the day. A quick example of mutant evolution by dynasties that the framers of the Constitution originally hoped to control. The other day Professor Jorge Tigno tweeted a chart on the prevalence of political dynasties from “Dynasties and Democracy: The Inherited Incumbency Advantage in Japan” (2018) by Daniel Smith, which showed Japan as having the fourth-highest prevalence of dynasties in politics exceeded only by Iceland (!), the Philippines, and Thailand. Academic research domestically has focused on defining “fat” dynasties (those whose members increasingly occupy multiple positions at the same time). I would add that just as stars, as they die, become gas giants, so, too, have our dynasties begun to bloat as they encounter an increasingly impossibly expensive and thus unrewarding political culture of their own creation. They must compete less with each other as they become increasingly detached from, and thus must more directly bribe, the electorate to stay in power.

Another specific instance of mutant evolution: Imbued with the activist imperative, the Supreme Court turned the experiment in direct democracy into a dead letter. The Court itself in the same period reacted to executive and legislative challenges by innovating a means to oust its own head by means of the legal creativity that remains an informal but durable legacy of the Marcos approach to legality. Still another example: the Arroyo-era “self-impeachment” solution to frustrate the Constitution making impeachment easier to foster executive accountability.

The House of Representatives committee on constitutional amendments held seven consultations, and the day before yesterday it approved a resolution calling for a constitutional convention to amend or revise the present charter. This is significant because previous congresses had insisted on attempting to directly propose amendments ended up frustrated because their pet proposals put forward as a package deal—the unholy trinity of unicameralism, parliamentarism, and federalism—did not appeal, particularly when associated with unpopular administrations or ones suspected of using these advocacies to disguise self-interested changes. It was enough to make a normally equally unattractive proposition—to embalm the existing setup—a little less dislikeable by comparison. The Supreme Court itself ensured methods outside the arena of Congress wouldn’t prosper, while the Senate enjoyed enough residual prestige to make the House risking a constitutional crisis a risky proposition.

Today, the House committee will resume deliberations on a draft bill to accompany the resolution they approved: It would be the enabling law providing for the election of convention delegates, a budget, and a timetable. Survey after survey in the past has identified a constitutional convention as the sole means that enjoys popular legitimacy: All others are held suspect and, as a result, have been unpopular. This is not to say there is a burning public desire either for constitutional amendments or for a convention; but what has been clear for a long time is that the one means that would be acceptable to the public, to accomplish constitutional change, was the means studiously ignored by the political class.I’ve always argued it would be hard to oppose a convention if it were proposed by Congress and an election called for the purpose of electing delegates. What has also been clear for some time is that while there remains little enthusiasm on the whole, among politicians, for changes affecting the political system, the opposite is true for amendments that are supposed to open up the economy (again, there are limits to the public acceptability for some of these proposals: One line public opinion doesn’t seem to want to be crossed is opening up land ownership to foreigners). This is unsurprising when you consider that three large political parties can be said to basically be subsidiaries of the conglomerates of tycoons: Ramon Ang’s Nationalist People’s Coalition has 35 House seats and five senators; Manuel Villar’s Nacionalistas, 36 House seats and four senators; and Enrique Razon’s National Unity Party has 33 House seats and a high batting average in backing winning presidential candidates.

—————-

Email: mlquezon3@gmail.com; Twitter: @mlq3