Is the Philippine flag ‘unconstitutional’?

THE RESISTANCE to the Bangsamoro Basic Law has shifted to the battleground of constitutionality. We still hear the occasional demand for the Moro Islamic Liberation Front to show its sincerity as a partner in the peace process by making amends for the Mamasapano incident—but now that congressional committees have started voting on the controversial measure, the question of MILF sincerity is no longer a determining or even perhaps an influential factor.

Even supporters of the bill recognize the shift in the debate; Rep. Rufus Rodriguez’s strategy to win the bill’s passage at his committee level, for instance, was premised and pushed (and publicized) on the perceived need to align key provisions in the BBL with the Constitution.

We can all agree on one principal reason for the change: It is an attempt to base the debate on firmer ground, on the solid logic of constitutional law rather than the volatile emotionalism of post-Mamasapano blame-mongering.

Except that the Constitution is not so much solid as a combination of all states of matter. On some questions, it has the quality of a liquid, assuming the shape of the given legal container it occupies. On others, it is gaseous, easily compressible depending on the source of pressure. It is solid and has a fixed volume only on certain questions.

If this metaphor does not work, my apologies. But the point I wish to make is that the Constitution is not as inflexible, as black and white, as lawmakers engaged in the BBL debate seem to suggest.

The argument, for example, that the BBL is unconstitutional because the Constitution does not allow the idea of asymmetry is worth a closer study, but why can’t the very concept of autonomy, embraced in a Philippine Charter for the first time in 1987, be flexible enough to accommodate a local government that is other than a region?

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Even the Constitution itself assumes certain contexts. It is not, cannot be, text alone; otherwise, many of its provisions will not make complete sense. I once heard Mahar Mangahas of Social Weather Stations criticize our legalistic culture’s overdependence on the notion of constitutionality at a University of the Philippines forum, by raising a provocative question: Is the flag constitutional?

He was referring to the way the Philippine flag is described in the 1987 Constitution. The first section of Article XVI provides that the “flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.” (The language is lifted, word for word, from the 1935 Constitution; the 1973 Constitution also uses the exact same phrasing.)

It takes some time, but gradually we realize what is missing in this description. It scants the eight rays in the sun, which irradiates the flag’s design with the fire of the Philippine Revolution; as every student knows, the rays stand for the first eight provinces to revolt against the Spanish colonial regime. This is hardly an insignificant detail, and any flag without the requisite eight rays would be controversial and even illegal. (It also does not specify the color of the sun and the stars—a nontrivial omission, when one considers other national flags with other-colored suns and stars in their design.)

But even without the qualifying phrase about consecration and honor and recognition, we readily supply what is missing. This is what I mean; the Constitution cannot be completely understood if it were treated as text only.

(For the record, the law that specified the design of the flag some 10 years after the Constitution took effect described the flag as follows: “The flag of the Philippines shall be blue, white and red with an eight-rayed golden-yellow sun and three five-pointed stars, as consecrated and honored by the people.”)

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To hear some of our legislators speak, the language of the Constitution is clear-cut and admits of no flexibility.

And yet the honorable members of the Senate and the House are quite content to disregard a literal reading of the Constitution when it suits them. Case in point: the Judicial and Bar Council.

This innovation of the post-Marcos Constitution specified only one “representative from the Congress” in the JBC’s list of members, and from 1987 to 1994 this limit was scrupulously followed, with representatives from the Senate and the House taking turns. But the literal reading of the constitutional provision was abandoned in 1994, and the representatives of the Senate and of the House began sitting in the JBC simultaneously.

This unconstitutional state of affairs came to an end only in 2013, or two decades later, when the Supreme Court stopped the charade. “In cases like this, no amount of practical logic and convenience can convince the Court to perform either an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope of congressional representation in the JBC is tantamount to the inclusion of a subject matter which was not included in the provision as enacted.”

During these two decades, “the Congress” was unconstitutionally represented in the JBC by such prominent lawyer-legislators as Alberto Romulo, Marcelo Fernan, Raul Roco, Renato Cayetano, Miriam Defensor Santiago (but only for a month), Francis Pangilinan, and Francis Escudero from the Senate; and Pablo Garcia, Alan Peter Cayetano, Simeon Datumanong and Niel Tupas from the House.

So when legislators wave the flag and demand that the BBL withstand the most stringent constitutional scrutiny, let’s gently set the flag aside, and also investigate the lawmakers’ sense of practical logic and convenience.

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On Twitter: @jnery_newsstand