By Michael Henry Ll. Yusingco and Sophiya M. Navarro
Last of two parts
And yet another plausible, even fundamental, reason why the Philippine charter has remained unamended for 32 years 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:
…when 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 power of judicial review is an important feature of the Philippines’ constitutional order, being an integral component of the institution of separation of powers. But the convention of judicial supremacy has effectively narrowed constitutionalism in the country. 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 a recent 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 analyzed and debated the 1987 Constitution properly and thoroughly. Hence, the desire to amend or revise it was never organically fostered. The plain fact is Filipinos have never been in the position to intelligently decide whether or not charter change is needed. Instead, the polity has always banked on the Supreme Court to make the “correct” interpretation to resolve any gaps in the constitution.
Accordingly, the ultimate reason why the 1987 Constitution has not been amended is found in the very same Pulse Asia survey cited earlier. One key result reveals that 75% of respondents said they had little or “almost none or no knowledge at all” of the 1987 Constitution.
In the context of constitutional reform, this finding poses a huge problem. How can any reform process ever be truly robust and inclusive when there is a glaring disconnect between majority of Filipinos and the national charter?
How can a full and thoughtful community participation in public debates be guaranteed, for instance on the matter of what mode of amendment to adopt or on how should Congress vote acting as a constituent assembly, when 3 out of 4 Filipinos have little or “almost none or no knowledge at all” of the 1987 Constitution?
Meanwhile, promoters of charter change have argued that the 16 million votes garnered by President Duterte are enough proof that Filipinos want charter change because they approve of his federalism agenda. This is utterly unconvincing. For sure, not all of those who voted for him are federalism fans. And not all of those who did not vote for him, and they number about 44 million, are against federalization.
What the Pulse Asia survey results cited here really show is the unreadiness of Filipinos to take such a profound political exercise. Indeed, only by undergoing a genuine and participatory national dialogue will Filipinos attain a level of consciousness where they can properly decide whether to change the charter or not. And anything short of this will only reinforce the anxiety and mistrust fueling their resistance to constitutional reform.
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, 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.
Fourth, there is a profound disconnect between citizens and the charter which has made it impossible to launch a credible charter change initiative. Simply put, Filipinos have never been in the position to intelligently decide whether constitutional reform is needed or not.
For good or bad, all of these reasons have allowed the 1987 Constitution to exist for 32 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.
This piece is a condensed version of an Ateneo Policy Center working paper. The full version is available at the Ateneo School of Government website and on the link in the online version of this article.