Protecting the Constitution from politicians

Amending a constitution is serious business; writing a new one is even more so.  A mature nation does it for the right reasons – to take account of new realities in the world or in the country itself, to solve persistent problems that cannot be cured by ordinary legislation, etc. It is irresponsible to undertake constitutional reform just to fix the problems of an incumbent politician.  It is like attempting to save a marriage troubled by a chronically dishonest spouse by drawing up a post-nuptial agreement, when dissolving the relationship is the more logical action to take.

Framers of constitutions everywhere are often cautioned against writing the values of their generation into a document that should serve future generations as well.  If this seems like sensible advice, then it should warn us against the tricks of politicians who want to write their political careers into the Constitution.

That’s the main reason I have refused to participate in the so-called “great debate” on Charter change.  Gloria Macapagal-Arroyo is the wrong person to start it.  Her mandate is under question because of the widespread belief that she conspired to rig the outcome of the 2004 presidential election.  Her behavior as president of the country in the last five years has been marked by a total lack of respect for the most basic principles of ethical leadership.  She is desperately fighting for survival.  A constitution written under such auspices can only be a polluted document.

A constitution belongs to the people, not to their politicians.  It must mirror their changing conception of themselves and of the role they seek to play in the world.  It must reflect the general state of their politics and define the kind of power structure they believe is appropriate to their needs.  Moreover, a constitution must set down the relationship between the state and the citizens in meaningful terms.  Constitutions typically formulate the rights and freedoms of citizens as limitations of governmental power.  But modern constitutions are moving in the direction of more positive rights — like the right to food, the right to housing, the right to education, the right to health, the right to a fair trial, and the right to employment, just to name a few.

These are issues much bigger than the fortunes of a few politicians. In the 1971 Constitutional Convention, one of the dominant currents that shaped the drafting of the new constitution was a resurgent nationalism.  The existing charter that had served the Commonwealth Government was found to be too resonant of colonial influence, and grossly inadequate to the challenges faced by a sovereign nation. Many delegates held decolonization to be the proper task of the convention.  But Marcos hijacked the work of the 1971 Constitutional Convention by declaring Martial Law, and shaped the final draft to suit his personal agenda.

That is the reason why hardly anyone objected when in 1986 the first act of the Edsa government was to throw away the 1973 Marcos Constitution.  A new constitution was drafted by 48 individuals handpicked by President Cory Aquino, and this was overwhelmingly ratified by the people.

A quick glance at the 1987 Constitution would reveal the principal concerns that guided its writing. The restrictions on executive power, especially on the power to declare Martial Law, are everywhere like a tonic seeking to cure a lingering authoritarian hangover.  The new Charter pays homage to the animating force of people power.  And the nationalist yearnings that could not be enacted in 1971 found their way in many provisions of the constitution.  The most significant of these are the provisions on the US Bases and the restrictions on foreign participation in the national economy.  We got rid of the bases in 1991, but the debate on the need to liberalize foreign entry into various sectors of the economy continues.

Today, the discussion is focused on the shift to the parliamentary system. The latter’s proponents argue that a parliamentary government is the best way to deal with the recurrent crisis of the presidency, which, they say, we have been forced to manage through the unwieldy mechanism of people power.  This is an interesting defense of the parliamentary system.  Would a parliamentary system really make people power unnecessary?

There are many advantages to a parliamentary system – a government that fuses executive and legislative powers.  But I suspect that, apart from the diversionary function that Charter change is meant to play in the present political juncture, the overriding reason behind the present plan to shift to parliamentarism is to strip the people of their right to directly elect their highest leader, thus paving the way for those who would never win in a popular vote.

Since 1998, when Joseph Estrada won decisively as president, Philippine politics has never been the same. The country’s traditional political class felt that their supremacy was coming to an end.  Unless they did something, they would henceforth have to deal with movie icons and media celebrities who stand outside the walls of the elitist system they control.  The fear of a president who will take his cues from the needs of his mass constituency rather than from the oligarchy that funded his campaign is what unites Fidel Ramos, Jose de Venecia and Gloria Macapagal-Arroyo.  They are the gatekeepers of a politics devoted to the perpetuation of oligarchical rule. This is the real crux of the issue, and the “no-election” scenario is only one small proof of the despair of our politicians.

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