COMMENTARY: Are Filipinos ready for constitutional reform?

MELBOURNE, Australia (MindaNews / 22 June) – Many constitutional scholars maintain that pathologies in a constitution can emerge during its reign. These pertain to provisions in the constitutional text itself that may have been designed with good intentions but have eventually become debilitating to the political system it purports to govern. Our very own 1987 Constitution is no exception.

Dr. Raul C. Pangalangan, the former dean of the University of the Philippines College of Law and presently a judge in the International Criminal Court, has proffered an organic irregularity in our charter, a “built-in contradiction between the economic and the governance clauses of the constitution.” This of course dovetails to the “economic” amendments agenda of Congressman Belmonte and his cohorts which is fundamentally grounded on the belief that de-nationalizing economic sectors in the country will bring in a deluge of foreign direct investments (FDI).

Appealing as their arguments for opening certain industries to foreign ownership are, this is still not actually a clear-cut proposition. There are still many questions regarding this matter that have to be dealt with before attaining any solid consensus. President Noynoy Aquino actually posits a sound argument when he points to the impressive performance of his administration in attracting FDI.

So is the influx of FDI really dependent on allowing foreign ownership in education, media and telecommunications? Or is the reason why FDI cannot fully take off in the Philippines is still the same old graft and corruption in government? Meaning, if foreign ownership in these industries is indeed allowed but graft and corruption in government remains business-as-usual, would there still be a surge of FDI to the country as Congressman Belmonte and his group predict? And how about the reverse, would it attract a higher level of FDI than the one our country is receiving now? It is quite evident that there is still a lot to be discussed on this issue alone. What more the other pathologies?

However, it is particularly interesting to ask why after all these years, and after all the critiques launched at the 1987 Constitution, is still there a passionate distrust for moves to amend or revise our constitution?

The answer perhaps lies in our unresolved issues with the Martial Law period of our nation’s history. Indeed, the immediate reaction to doubt charter change advocates implanted by the case of Javellana vs. Executive Secretary has not been lost with the passage of time.

Note that the Supreme Court in this case actually ruled that Ferdinand Marcos Sr. railroaded the adoption of the proposed Constitution in 1973. The citizens’ assemblies he organized, where the ratification of the proposed charter was determined by a show of hands, were declared improper and could not be the basis to legitimize a constitution. In fact, the high court opined that this exercise was an absolute farce, not only because of its inherent inanity but, more so, because Marcos’ guns and goons were outside the halls where these assemblies were held—a scenario that obviously precluded any legitimate outcome arising from the process.

And yet, legal scholar Professor Dante Gatmaytan-Magno points out in Changing Constitutions: Judicial Review and Redemption in the Philippines: “In Javellana, a majority of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because the constitutional requirement of two-thirds of the Court voting to declare a law unconstitutional was not met, the Court also concluded that the new charter was already in effect. That decision allowed Marcos to govern under a dictatorship until he was forced out of office in 1986. Since that time, the Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy. Many wonder if the Court will allow itself to be used in a similar fashion at some point in the future—or the present.”

Pertinently, the professor’s apprehension over the possibility that the Supreme Court will again lose its constitutional fortitude has been affirmed by the recent decision in the case of Enrile vs. Sandiganbayan to allow an accused plunderer, Sen. Juan Ponce Enrile, to post bail. The public was clearly dismayed by the high court’s preferential treatment of the veteran lawmaker. This disappointment was exacerbated by commentaries from a host of legal scholars showing that the decision actually ignored the parameters on the right to bail established in Article III, Section 13 of the Constitution. And so with flouting the rule of law at the top level of the judiciary still possible, the general public’s serious anxiety over charter change seems justified.

But apart from this lingering distrust, our experience with commencing constitutional reform limited by a fixed timetable is a stark lesson. In this regard I note the regret of Rene Sarmiento, a member of the 1986 Constitutional Commission, over the decision to just rely on Congress to enforce through legislation certain fundamental directives in the charter (i.e. prohibition against political dynasties). The former COMELEC Commissioner lamented, “There was political instability, coups were being staged. There was an urgency to stabilize the country and we were pressed for time.” Poignantly, Sarmiento now admits that, “We did not foresee that after EDSA 1, change will take time.”

Such a realization is indeed an important caveat for all of us contemplating a complete overhaul of our current charter specially that the gravity of constitutional reform is now indisputable. The 1986 Constitutional Commission worked under an urgent deadline and that was to legitimize the revolutionary government of President Cory Aquino. But we are certainly in a more fortunate position now because there are no reasons or contingencies that compel us to rush constitutional reform. Therefore, any attempt at charter change without going through any form of comprehensive public discourse must be rejected.

More importantly however, I suggest that avid proponents of constitutional reform in the administration initiate first a preparatory step in the form of a massive civic education campaign on constitutional principles for local communities. After undergoing this political exercise, Filipinos from Batanes to Tawi-Tawi, will be able to see themselves not merely as passive observers in the sidelines but as continuing stakeholders to the enforcement of constitutional rules and tenets. And I genuinely believe that it is only upon reaching such a level of constitutional awareness can Filipinos confidently undertake the constitutional revision process.

(MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is presently completing a Masters of Law and Development in Melbourne Law School. He recently published a book entitled, Rethinking the Bangsamoro Perspective.)