Diagnosing pathologies in the 1987 Charter

The 1987 Constitution is considered one of the most enduring constitutions in the world because it has stood for 28 years without being amended. This is an odd quality considering that most scholars will agree that a constitution is never infallible or immortal even as they debate among themselves the ideal life span of a nation-state’s charter.

But none of these experts will deny that pathologies in the constitution can emerge during its reign. These pertain to provisions in the text itself that may have been designed with good intentions for the polity but have eventually become debilitating to the political system it purports to govern. Our own 1987 Constitution is no exception.

A very obvious one pertains to the quality of government that the republic should have. The Preamble is explicit about the Filipinos’ desire “to establish a Government that shall embody our ideals and aspirations.” Of course, a corollary of this goal is the intent “to prohibit political dynasties” (Section 26 of Article II).

No need to elaborate here, but the current government framework certainly does not embody our ideals and aspirations while traditional elites maintain their chokehold on the political system. These two unfortunate realities clearly point to an anomalous area in the Constitution that begs to be addressed.

Inquirer publisher Raul C. Pangalangan, a former dean of the University of the Philippines College of Law and recently elected judge of the International Criminal Court, proffered a more organic irregularity in an article published in the National Taiwan University Law Review [Vol. 4: 3, 2009], where he wrote about a “built-in contradiction between the economic and the governance clauses of the constitution.”

According to Pangalangan, the Constitution’s passionately nationalist stand with regard to socioeconomic matters and its avowed protectionism against foreign interests seem to project a partiality for an “expanded state.” Yet in allocating governmental powers, a maze of check-and-balance provisions has been instituted to actually form a “shriveled state.” Essentially, the Constitution has established a schizophrenic state which is once again a sad reality that yearns for remedial action.

Obviously, diagnosing pathologies in our Constitution is a huge task. And as House Speaker Sonny Belmonte himself has learned from his “economic amendments” debacle, mere determinations from politicians and interest groups, no matter how well-thought and presented, will not be credible enough for the general public. In fact, in order to produce an accurate and truly legitimate result, this process demands the ardent participation of the polity itself.

Constitutional scholars have long theorized that the active engagement of citizens in the constitution-writing process actually engenders a deep sense of investment for the establishment of rules and principles in the community.

Furthermore, the people’s involvement in the drafting enterprise essentially lays the groundwork for a political culture of consultation and cooperation. Indeed, according to the United Nations Assistance to Constitution-making Processes (April 2009), “Constitution-making presents moments of great opportunity to create a common vision of the future of a state, the results of which can have profound and lasting impacts on peace and stability.” This collective approach in the constitutional project and its resulting benefits also holds true for constitutional reform.

Therefore, the task of identifying the aspects of the 1987 Constitution that require remedial action has to be carried out via a widespread and substantial public consultation process. Issues such as expanded regional autonomy for Mindanao and the Cordillera, blanket prohibition on political dynasties, further economic liberalization, consolidation of social safety nets, electoral reforms, etc. must all be exhaustively threshed out by the people in this nationwide political exercise.

The scenario I envision for this comprehensive “diagnostic” process is not at all complicated and implausible. I see members of a community congregating for this purpose via the barangay assembly apparatus.

Admittedly, dissecting constitutional issues pertaining to good governance, economic prosperity, liberal democracy and social justice does not exactly fall within the powers of the barangay assembly under the Local Government Code (LGC). But this mechanism is still the most convenient way to gather ordinary citizens and give them the opportunity to speak out and be heard. After all, the LGC itself considers the barangay a “forum wherein the collective views of the people may be expressed, crystallized and considered.”

Moreover, I envision representatives of law schools in the area assuming the role of moderator in these assemblies. I concede that this would be a daunting imposition on these academic institutions. But it is warranted under Section 5(a) of the Volunteer Act of 2007 which states:

“Volunteerism in the academe includes, but is not limited to, provision of technical assistance and sharing of technology within the academic circle, target communities and other clienteles and the upgrading of the quality of education and curriculum methodologies while providing career enhancement and exposure to the volunteers.”

The fact is law schools are the only institutions in the country where constitutional professionals, so to speak, are produced. Their knowledge in constitutional reform forms part of legal “technology” which they can share with the communities where they belong. Taking the helm in this task can only enhance the standing of participating law schools and can certainly be a big boost to their faculty and students.

Ostensibly, the detailed mechanics of the sessions themselves shall be the responsibility of each law school involved. But the targeted output for each barangay should be a position paper outlining the pathologies in the 1987 Constitution and the remedial action that must be undertaken.

Indeed, the entire endeavor can be a good precursor to constitutional revision. Those position papers could all be formally endorsed to Congress and form the basis of a working draft that can initiate the amendatory process under Article XVII.

But this undertaking can also function as a massive civic education campaign on constitutional principles for local communities. It is highly possible that after undergoing this cathartic political exercise, Filipinos from Batanes to Tawi-Tawi will begin to see themselves not merely as passive observers in the sidelines but as continuing stakeholders in the enforcement of constitutional rules and tenets.

Michael Henry Ll. Yusingco, a practicing lawyer, is the author of the book “Rethinking the Bangsamoro Perspective.” He conducts research on current issues in state-building, decentralization and constitutionalism.