Why has the Constitution of the Philippines Endured for 31 Years Without Amendment?

–Michael Henry Yusingco, Ateneo Policy Center

President Rodrigo Duterte assumed office in July 2016 with the commitment to shepherd the transition of the Philippines to a federal form of government, an undertaking that requires a revision of the country’s constitution.

Notably, the current Philippine constitution has stood for three decades without any amendment. This is an odd quality considering that most constitutional scholars agree that national constitutions remain unamended on the average only for 19 years.

Therefore, probing why the Philippines’ 1987 Constitution has stayed untouched for 31 years is a primordial question in this ongoing constitutional reform discourse in the country.

Problematic text

One reason why the Philippine charter continues to be unamended could be the lack of clarity in the text itself on how to go about it. In Article XVII, the 1987 Constitution provides three modes of constitutional amendment: 1) by Congress as a constituent assembly; 2) by a constitutional convention; and 3) by people’s initiative. In all three instances, any revision to the national charter shall only be valid when approved by the electorate in a plebiscite.

President Duterte and his allies in Congress favour the constituent assembly mode (#1) because they see it as the practical choice. However, some charter reform advocates prefer the constitutional convention mode (#2) because for them any cost to be incurred by the state should be acceptable given the gravity of this political exercise for all Filipinos.

To make matters even more volatile, the 1987 Constitution provides that any “amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members[.]” The phrase “of all its members” has raised the question of whether the bicameral Congress acting as a constituent assembly should vote separately or jointly?

The prevailing view is that the two chambers of Congress should vote separately. The surviving members of the 1986 Constitutional Commission are unanimous in advocating this view. Former members of the Supreme Court, legal scholars and all incumbent senators insist that the voting must not be done jointly.

However, former Speaker of the House of Representatives and staunch presidential ally, Pantaleon Alvarez, insists that Congress can vote as one body and therefore the lower chamber can proceed even without the cooperation of all the senators. The current Speaker, former president Gloria Arroyo has a different view and has instead filed a resolution inviting the upper chamber to convene as a constituent assembly. But will the Senate bite? This remains to be seen.

Deep public mistrust

Another reason why the Philippine constitution has not been amended could be the context whenever such a proposal is made. This move has always been viewed as an underhanded scheme to extend the term of a sitting president. This national “scepticism is rooted in the Marcos era where the dictator used constitutional change to duck term limits.”

Political opponents of President Duterte claim that he could not be trusted with his promise not to run again for president under a new charter. Senator Leila De Lima, a tenacious critic of Duterte and currently detained on drug charges, adds that it is difficult to rely on an administration that has already shown its “susceptibility for abusing power, for allowing impunity to reign, and for lying repeatedly to the public.”

It is also worthy to note that the possibility of charter reform via a constituent assembly is likewise burdened with a serious trust deficit because of the palpable conflict of interest afflicting those pushing for this mode.

A few days before the president’s State of the Nation Address last July 23, academics and professionals released a statement expressing serious misgivings on the capability of lawmakers to overcome their political self-interests if indeed charter change is to push through, to wit:

Almost 80% of Congress is comprised of political dynasties, and the empirical evidence suggests that a majority of them may face deep conflict of interest if a new constitution aims for reforms that level the political playing field. The risk of capture by vested interests affecting our present politics is too great

Ironically, a member of the House of Representatives has said: “If the ones who will discuss Cha-cha (charter change) are just the House and Senate leaders, then many would view this as suspect at the very least, even dangerous, and at worst, self-serving.”

Crippling judicial supremacy

And yet another plausible, even fundamental, reason why the Philippine charter has remained unamended for 31 lies in the nation’s tradition of judicial review, specifically the power of the judiciary, i.e. the Supreme Court, to interpret the constitution.

This power is articulated in the very old case of Angara vs. Electoral Commission:

[W]hen the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed “judicial supremacy” which properly is the power of judicial review under the Constitution.

The gist of this doctrine is this, “the Constitution means what the Supreme Court says it means”. And this has been the constitutional mindset in the Philippines ever since this Supreme Court decision.

Notably, in recent a parliamentary exchange between two senators, this question was raised, “Can the Senate interpret the Constitution?”. The answer of one senator, which today remains uncontested, was that it cannot because there is no specific provision authorizing the senate to interpret the constitution.

However, the Preamble clearly states that it is the “sovereign Filipino people” who “ordain and promulgate” the 1987 Constitution. And therefore as authors of the constitution, Filipinos, including legislators, do have the inherent authority, indeed the responsibility, to interpret their constitution.

The abdication of this power and duty is also reflected in how the 1987 Constitution is taught to the citizenry. Based on anecdotal research, high schools and universities teach the charter the same way law schools teach it, using jurisprudence as the primary and only resource material. So essentially young Filipinos learn only the Supreme Court’s perspective of the 1987 Constitution.

The bad consequence of this tradition is Filipinos are not encouraged to look at the 1987 Constitution through their own lens, using their own thinking.  And worse, critical examination of the charter itself is stifled by this longstanding policy of judicial supremacy.

Accordingly, an impetus from the community to change the charter or some parts of it, has never been formed. All past attempts at changing the 1987 Constitution, including the current one, have been initiated by politicians.

The reality is Filipinos have never habitually analysed and debated the 1987 Constitution properly and thoroughly. Hence, the desire to amend or revise it was never organically fostered. Instead, the polity has always banked on the Supreme Court to make the “correct” interpretation to resolve any gaps in the constitution.

Conclusion

To summarize, the 1987 Constitution has remained intact for 31 years for several reasons. First, the way the amendment process is articulated in the text has given rise to contesting views making the launching of a strong and united initiative to amend or revise the charter very difficult.

Second, the political context surrounding all the moves to amend or revise the 1987 Constitution has always been dominated by a lack of trust, specifically directed at those pushing for it. Indeed, a trust deficit so severe, proponents have always failed to garner national support for their cause.

Third and last, there is a subtext in the evolution of the country’s constitutional order that underpins the endurance of the 1987 Constitution and that is the supremacy of its Supreme Court in determining what it means. Because Filipinos have surrendered this power to the Supreme Court, a culture of critical analysis in the community has never been cultivated. Consequently, a consensus of amending or revising the charter has never naturally evolved.

For good or bad, all of these reasons have allowed the 1987 Constitution to exist for 31 years without amendment. But the moment calls for Filipinos to deeply reflect on their national charter and how this has impacted the political economy of the country for the past three decades. Therefore, understanding these reasons is imperative for the nation’s constitutional maturity and must be studied further through President Duterte’s constitutional reform project.

Suggested Citation: Michael Henry Yusingco, Why the Constitution of the Philippines has Endured for 31 Years Without Amendment?, Int’l J. Const. L. Blog, Oct. 4, 2018, at: http://www.iconnectblog.com/2018/10/why-the-constitution-of-the-philippines-has-endured-for-31-years-without-amendment